Thursday, February 9, 2017

Aboriginal Rights of the Jewish People (2017 Edition)

Reconciling subsequent rights of the newborn Palestinian People with prior rights of the age-old Jewish People.

Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet, including with respect to aboriginal issues. He formerly worked in Canada's Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B.A.) and then East European and Ottoman history at Columbia University (M.A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).


Introduction


Earlier editions of this article appeared in American Thinker, Israel Resource Review, Winnipeg Jewish Review, Jerusalem Post, Times of Israel, Tablet Magazine, and at www.aish.com. Versions in Italian, French and Chinese are also available, as separate postings on this website. This English-language version is the authoritative text, current to December 2017.

This essay is not just about the specialized discipline called "public international law" but appropriately also about history and comparative law -- including anthropology and elements drawn from natural, Common, Canadian, USA, Islamic, and Jewish law.

This article does not aspire to be any exhaustive survey of the moral and legal claims of modern Israel as a sovereign country within the international States' system. Rather, emphasis here is on the companion and complementary aspects of the self-determination rights of the Jewish People and its millennial rights in its ancestral homeland.

Throughout, the argument is that the age-old Jewish People possesses long-exercised aboriginal rights of entry, sojourn and settlement, which today extend at least from the Jordan River to the Mediterranean Sea. This paper thus dissents from United Nations Security Council Resolution 2334 of December 23, 2016, which egregiously erred in reaffirming "that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law."


"Aboriginal" vs. "indigenous"

The adjectives "aboriginal" and "indigenous" are commonly used for relative assessments that across populations compare a couple of pertinent characteristics:
  • First, either term is more or less appropriately employed when the intention is to classify a local People as "domestic" relative to the "foreign" provenance or intrusion of one or more alien Peoples. By definition such a geographic comparison refers to at least two different places.
  • Second are historical comparisons asking: "Which one of the extant Peoples now in this country or region was here first in time?" Referring to more or less the same geographic space, this is a temporal inquiry that includes at least three chronological periods -- the present time plus the birthday or "date of entry" of each one of the popular contenders for the prize of local priority.
By both Latin etymology (ab origine = from the beginning) and English meaning, the word "aboriginal" can be understood as also pointing to this key aspect of being chronologically "first in the land." But such emphasis on temporal priority is absent both from the English term "indigenous" and its Latin ancestor indigenus, the two of which mostly mean "born in the land" rather than "first in the land."

As between "aboriginal" and "indigenous," this semantic difference is not just a linguistic curiosity. Because priority can suggest a special connection to the land, being "first in time" has often been perceived as conferring prestige, legitimacy and sometimes rights. Among the extant local Peoples, who was there first can thus be of deep current interest politically. The identity of the true aboriginal People is understandably sometimes keenly contested. Priority in the land often features in ancient popular myths and also in millennial histories. But, there are also modern ethnic genealogies, including some newly fabricated with an eye to current disputes. With this "priority" issue so salient sociologically and politically, careful use of terminology is required to capture any distinction between an aboriginal and an indigenous People.

Consider extant Peoples in a modern country or region. First in the land, the current aboriginal People may also be indigenous as literally born there. Or, that current aboriginal People might have initially come from outside to an empty territory. And if the land was not empty, any preexisting populations might perhaps have been annihilated or assimilated. But over the centuries, the land can gradually give birth (ethnogenesis) to one or more additional Peoples. If so, none of those later indigenous Peoples can ever be aboriginal relative to the current local People that was there first in time; just as that current aboriginal People retains its temporal priority relative to Peoples subsequently arriving by conquest or settlement.

Though Canada's 1982 Constitution Act specifically highlights "rights of the aboriginal peoples," the one term "indigenous" has recently been promoted internationally in the United Nations Declaration on the Rights of Indigenous Peoples (2007). However, the latter provides no legal definition of "indigenous People." Itself disclaiming any pretension to be exhaustive, this new UN instrument conceptually focuses, from an international perspective, on the domestic relationship between the current sovereign State and one or more indigenous Peoples. Notable is what the UN Declaration omits -- specifically, it says very little about inter se relations among indigenous Peoples and nothing at all about an "aboriginal" People.

What are aboriginal rights?

The theme of "People" and "historic homeland" has for centuries resonated with Jews around the world. However, our own time sees an increasingly bitter controversy over the Jewish People’s right to self-determination in all or part of its aboriginal homeland. That fierce debate inevitably involves the political and legal doctrine of the self-determination of Peoples. There is also the companion doctrine of aboriginal rights.

Legal systems frequently see long continued use, habit or custom as a source of law. For example, the English Common Law holds that the consistent practice of mooring a boat in a particular place can become a customary right after twelve to twenty years. Similarly, both anthropology and many of the world's legal systems recognize as group or tribal customary right, a rich variety of consistent collective practices dating back just a few decades, or maybe a century or two. For example, Canadian law acknowledges that, depending on particular circumstances, there can be distinctive aboriginal rights both to self-government and to title to tribal lands. It is also possible for a tribe to enjoy aboriginal rights to one or more specific practices like logging, hunting, fishing, crossing into Canada from the USA, and duty-free importation into Canada of goods for tribal use.

So, what of the more than twenty-six centuries during which the great Jewish People of world history famously kept some real demographic and cultural ties in and with its ancestral homeland? An answer was provided by David Ben Gurion as Chairman of the Executive Committee of the Jewish Agency for Palestine. In May 1937, he astutely clarified that "Jews coming to Palestine do not regard themselves as immigrants: they are returning as of right to their historic homeland." He was juridically precise in then articulating "the right of Jews to enter Palestine and to re-establish there their National Home."

Rights of entry and settlement were also the focus for theoretical physicist and Nobel laureate Albert Einstein in a June 13, 1947 letter to Jawaharlal Nehru who was then leading the interim government preparing India's independence:
Free Jewish immigration to Palestine, and the right of the Jews to continue the upbuilding of their ancient homeland without artificial restrictions, will increase the sum of well-being in the world.
References by Ben Gurion and Einstein to Jewish rights of entry and settlement pointed (inter alia) to directly relevant treaties which are the highest source of public international law. Specifically, declarations, resolutions and treaties from the First World War (1914-1918) and the subsequent peace settlement had already explicitly recognized the Jewish People's historic connection to its aboriginal homeland. And, half those treaties had literally called for facilitated Jewish immigration and "close settlement by Jews on the land" everywhere west of the Jordan River.

"Treaties are like roses and pretty young women; they last as long as they last." That was the cynical quip of Charles de Gaulle who was President of the jaded, pragmatic and sometimes defeated country that was 20th-century France. By sharp contrast to de Gaulle's breezy Realpolitik perspective, "desuetude" and "obsolescence" are topics significantly absent from the 1969 Vienna Convention on the Law of Treaties. Rather, emphasis there is on universal recognition of the rule pacta sunt servanda, meaning "agreements must be kept."

Moreover, beleaguered aboriginal Peoples strongly reject any suggestion that their treaty rights no longer apply. Pertinent experience in Canada, New Zealand and elsewhere shows that, if powerful States recognize ancestral rights in a treaty with an aboriginal People, they can expect to be forever reminded of that recognition and of those rights. Exactly so is it in the Declaration on the Rights of Indigenous Peoples which characteristically highlights "the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties." This is a potent reminder that the Jewish People also has clear treaty rights that endure to this day.

In addition to such specific treaty rights, the Jewish People also has other kinds of rights as adumbrated in the May 14, 1948 Declaration of the Establishment of the State of Israel. There, the Jewish People's right to national self-determination is coupled with a "natural and historic right" to "the birthplace of the Jewish People," where "Jews strove in every successive generation to reestablish themselves." On December 2, 2012, the Israel Cabinet reaffirmed: "The Jewish People has a natural, historical and legal right to its homeland."

The concept of aboriginal rights has been well understood by other Peoples, e.g., by the Greek People in the 19th century, when it fought for independence from the Ottoman Empire. Now speaking articulately about their aboriginal and treaty rights, the Indian tribes of Canada astutely perceive that law is akin to an ongoing discussion about rights, in which it is essential to offer meaningful arguments. That legal discussion is also a place where a small People tells its own story, which can be a compelling narrative that engages the conscience of others more powerful.


Napoleon's "proclamations" to the Jews

Exactly such a reflection of gentile conscience were the one or more wartime messages which the 29-year-old French Revolutionary General, Napoleon Bonaparte, is alleged to have addressed to the Jewish People during his 1799 campaign in the Holy Land. This territory was then included within the 18th-century French understanding of Ottoman "Syria" where Napoleon significantly judged that "Jews were quite numerous."

The pertinent events occurred six years after revolutionaries had executed Louis XVI, King of France. The contemporary context was the War of the Second Coalition (1798-1802) pitting several European monarchies and the Ottoman Empire against the French Revolutionary Republic and its satellite republics. Then, revolutionary and republican rhetoric still trumpeted the new political principle of the self-determination of Peoples. From 1798 and 1799, there is detailed evidence that some prominent revolutionaries saw the Jews as an age-old and famous People "bent under the yoke of princes."

For example, the Jewish People and its link to its aboriginal homeland were highlighted by Joachim Le Breton, editor of La Décade philosophique. This prestigious periodical was religiously read by the Republic's leadership, specifically including Napoleon. He had already liberated Italian Jews by famously abolishing the ghettos, during his spectacular conquest of the peninsula (1797).

After the French Revolutionary Army took Gaza (February 25, 1799), various Arabic-language proclamations were printed to win over Muslims. There were also some separate messages for Christians in Jerusalem, Nazareth and the Lebanon. Moreover, Napoleon wrote (March 20, 1799) to court Bashir Shihab II, the Emir of the Druze: "My intention is to make the Druze nation independent, to lighten the tribute which it pays, and to deliver to it the port of Beirut and other towns necessary for the outflow of its commerce." Did Napoleon then make similar offers to the Jews?

During his exile on Saint Helena (1815-1821), Napoleon personally completed (1819) a careful account of the 1799 "Syrian" campaign. Napoleon there indicates that the French Revolutionary Army had then sent Jewish agents to Damascus and Aleppo. The implication is that their mission was to stimulate local Jewish support for "liberty, equality and fraternity." In this vein, another source (discovered in 1940 in a German translation) attributes to Napoleon a "letter" or "communication" (April 20, 1799) that described "Israelites" as "lawful heirs" to their "ancestral land" and encouraged them to "hasten" home to reclaim their "patrimony." If we take those words to be genuine, they were probably written after Napoleon's great victory over the Ottomans at the Battle of Mount Tabor (April 16, 1799).

But whether or not the "communication" found in 1940 is authentic, the dignified phrase "la nation juive" (the Jewish People) came easily to Napoleon's pen in 1798. Moreover, in the following year, his European, British and American contemporaries most certainly knew from an entirely separate, widely-distributed source (Le Moniteur) about an alleged report from Constantinople (April 17, 1799). This famously claimed that Napoleon had issued a "proclamation" inviting Jews to rally to his banner "to reestablish ancient Jerusalem." The striking news appeared in the Paris press on May 22nd and 29th, and again on June 27, 1799. There had also been a similar item in a Berlin newspaper. Whether from Paris and/or the Mideast, the interesting story that Napoleon had issued such a "proclamation" also rippled through Jewry where ancient Messianic dreams were stimulated.

Into spring 1799, Napoleon still harbored hopes of soon conquering the whole Ottoman Mideast and then perhaps moving on via Iran to attack British India. Thus, both in "Syria" and later in exile on Saint Helena, Napoleon judged his May 1799 failure to take Ottoman Acre as a turning point in world history. In his own account finished some twenty years later, Napoleon significantly added that "a vague hope" was "animating" local Jews when spring arrived in 1799. Writing in the third person, he indicated that "news was circulating among them that, after taking Acre, Napoleon would present himself in Jerusalem where he would reestablish the temple of Solomon."

But, what Napoleon himself had probably been thinking in 1799 was perhaps revealed more clearly in Paris in the year following his return from the Mideast. As First Consul of the Republic, he told the Council of State (August 16, 1800): "Si je gouvernais un peuple de juifs, je rétablirais le temple de Salomon." [If I governed a nation of Jews, I would reestablish the temple of Solomon.] Napoleon had there been making a broader point about governing to please the majority as "the way to recognize the sovereignty of the people." Thus, in this important democratic context, he chose to rhetorically offer (alongside three other examples) the startling hypothesis of a majority Jewish country centered on Jerusalem.

There were public policy precedents for the initiative for the Jews which Napoleon is alleged to have made in Ottoman "Syria." During the month immediately before and after May 19, 1798, when his fleet sailed for Egypt, prominently published in Paris were some semi-official strategic points and propaganda sympathetic to the peoplehood of the Jews and explaining how the Republic could richly gain by sponsoring their return to their ancestral homeland.

This same calculation later appeared in Bonaparte in Cairo, a rapidly written "current affairs" book rushed into print in Paris close to the end of 1798 or the start of 1799. Regarding restoration to the Jewish People (Fr: la nation juive) of "their land of origin," it was there argued: "The conqueror of Egypt is too good a judge of men to misunderstand the advantages which could be derived from this people in the execution of his vast plans."

Similarly, the seasoned Irish revolutionary Thomas Corbet sent (from Lorient in Brittany, February 17, 1799) to the principal Republican leader, Director Paul Barras, a plan for facilitating return of the Jewish People to "Palestine." Pointing to Napoleon in Egypt and also to the wider war against England and its allies, Corbet compared the long-suffering Jewish People to the oppressed Irish and Poles. The Jews were portrayed as also hoping to be free.

Equally a sign of the times, fellow Director Merlin de Douai got from a senior official in northern France a letter (February 28, 1799) suggesting that Europe's Jews viewed Napoleon as the Messiah, with 1.5 million of them awaiting his signal to leave for the Mideast. Moreover, Merlin was told:
One can derive a great deal from these people by flattering their religious prejudices. I leave it to your wisdom either to work to develop this idea if you think it of some value, or to just laugh it off as a joke.

Jean-Léon Gérôme (1863), Bonaparte in the Mideast, 1798-1799.
The revolutionary French Republic and Napoleon Bonaparte then strongly
championed the new political principles of
popular sovereignty and the self-determination of Peoples.





Palestinians "a People" but Jews not?

Denying or minimizing Jewish rights is an integral part of the ongoing war against the Jewish People and Israel. For example, both Palestinian leader Mahmoud Abbas and former Iranian President Mahmoud Ahmadinejad stubbornly deny that the Jews are a People, within the context of the modern political and legal doctrines of aboriginal rights and the self-determination of Peoples. Their persistent rejection of Jewish history and peoplehood is precisely the position earlier articulated in the 1964 Covenant of the Palestine Liberation Organization and the 1968 Palestinian National Charter:
Judaism, being a religion, is not an independent nationality. Nor do Jews constitute a single People with an identity of its own; they are citizens of the states to which they belong.
Such denial of Jewish peoplehood is astonishing because an enormous body of archaeological and other historical evidence demonstrates that -- like the Greeks and the Armenians -- the Jewish People is among the oldest of the world's Peoples. Now, a quarter-century of genome research has produced a totally new kind of evidence suggesting that most of today's Jews are, to an appreciable extent, genetically interrelated and significantly descended from Jews of the ancient world.


"Dead Sea Scrolls" fragment from Genesis.
Referring to a specific name
and also to shared ancestry, territory, language and achievement,
Genesis describes what it means to be
a distinct People alongside other named Peoples.


Early sources establish that Mideast man understood the idea of peoplehood. For example, then self-identified "Jews" regarded peoplehood as one of the principal motors of world history, as shown in their biblical Book of Genesis, from perhaps around 600 BCE. Referring to a particular popular name and also to shared ancestry, territory, language and achievement, Genesis (in the story of the "tower of Babel" and elsewhere) describes sociologically what it means to be a distinct People alongside other named Peoples.

Thus, the early modern European Peoples were much later able to derive their understanding of what it means to be a People in history, principally from the story of the Jewish People, as powerfully portrayed in the Hebrew Bible. That book, in its various translations, was one of the foundation stones of European civilization.

The Hebrew Bible also exercised considerable influence on the development of Islam. Thus, referring to the Taurat (Arabic: توراة ), the Koran endorses the Torah or Pentateuch (Five Books of Moses) as part of the revealed word of God. The Koran also tells the story of the Jewish People, including its special connection to the Holy Land.

In the same vein as the Koran was Ben Gurion's public testimony (January 7, 1937) in Jerusalem before the magisterial Palestine Royal Commission, chaired by William Robert Wellesley, Lord Peel:
Our right in Palestine is not derived from the Mandate and the Balfour Declaration. It is prior to that. [...] I say it on behalf of the Jews that the Bible is our Mandate; the Bible which was written by us, in our own language, in Hebrew, in this very country. That is our Mandate. The right is as old as the Jewish People.

What is "a People" ?

Linguists have theorized about whether there was ever a proto-Semitic language. This famous linguistic theory was eagerly racialized to suggest kinship among the alleged Semitic-speakers. If so, any such genetic connection would have to reach far back into prehistory and today awaits further findings from the new genome science.

From linguistics far more pertinent to the phenomenon of Jewish ethnogenesis are the immediate origins of the Hebrew language in the half millennium after 1500 BCE. Finally born around 1000 BCE was a particular tongue biblically known as the "language of Canaan" (Heb: sepat kena'an שְׂפַת כְּנַעַן) or more frequently as "Jewish" (Heb: yehudit יהודית).

The specifically "Hebrew" language (Heb: ivrit עברית) is not explicitly identified as such anywhere in the Bible. Using "Hebrew" as the name for the language of the Jews seems to have first occurred in the 2nd century BCE. At the dawn of the Common Era, the "Hebrew" language (Greek: Hebraisti Ἑβραϊστὶ) appears several times in the Christian gospels, where the reference probably points to Aramaic.

That bit of linguistic history is useful to teach that peoplehood is not just about genetics; but is rather simultaneously a complex sociological phenomenon -- partly a conceptual artifact or symbol, always something of a cultural invention. Significantly analogous to the trademark of modern intellectual-property law is the particular name which a specific population commonly uses to consistently self-identify as a distinct People, as distinguished from other Peoples.

For example, consider in clear chronological order and specific historical context, the ethnonyms --  יהודים‎ Yehudim = Jews;  汉人 Hanren = Han People (i.e. the Han Chinese);  українці Ukraïntsï = Ukrainians; and Québécois = Quebeckers. General self-identification under such a definite name is the key expression of group self-consciousness that simultaneously signals and enables collective political ambition.

Beyond its chosen popular name, the pertinent group must also share some relatively distinct social and cultural features drawn from a wide-open menu, potentially including -- ancestors, language, history, homeland, territory, rites, rituals, religion, mores, etiquette, laws, citizenship, institutions, mythology, folklore, writing system, literature, drama, painting, plastic arts, dress, diet, cuisine, dance, music, games, sports, agriculture, and economy. Thus, every People is not marked by the same set of shared characteristics. But practically, there is little difficulty in identifying a particular People and distinguishing one from another.

In addition to its subjective identity, such a specifically named People normally attracts a companion objective identity in the eyes of its friends and enemies, who from each succeeding century provide valuable historical evidence about its existence and characteristics. Critical is this reference to subjective and objective evidence from each successive period.

For example, powerful objective evidence comes from the early 7th-century BCE cuneiform inscriptions of the Neo-Assyrian King Sennacherib written in Standard Babylonian Akkadian. Reference there is to the defeat (701 BCE) of Hezekiah "the Jew" (ia-u-da-a-a) who was said to be king of a country called Judah (ia-u-di):
As to Hezekiah, the Jew (ia-u-da-a-a), he did not submit to my yoke, I laid siege to his strong cities, walled forts, and countless small villages, and conquered them by means of well stamped earth ramps and battering rams...  Himself I made a prisoner in Jerusalem, his royal residence, like a bird in a cage.
Subjectively, the ethnonym Yehudim appears biblically numerous times in Hebrew and Aramaic. For example, in the Second Book of Kings, there are two separate references to Yehudim by way of contrast to Edomites and Chaldeans respectively. These early biblical references complement independent epigraphic sources referring to the polity Yehuda or the ethnonym Yehudim. For example, pertinent are famous stelae, royal seals of the Kingdom of Judah, and Neo-Assyrian and Neo-Babylonian cuneiform inscriptions. Combining such solid extra-biblical evidence with what we have long known from the Hebrew Bible allows us to conclude with a high degree of confidence that circa 600 BCE there existed a distinct population:
  • in/from the kingdom of Yehuda (יְהוּדָה);
  • using a language called yehudit (יהודית); and
  • self-identifying as Yehudim (יהודים‎).
Without exception, this popular name Yehudim can be validly translated into English as "Jews" -- rather than as "Judahites" or "Judeans." Those last two English-language variants are sometimes preferred for purely contextual or interpretative reasons that are entirely extrinsic to the precise ethnonym Yehudim as literally expressed in the original Hebrew, Aramaic or Akkadian.

Due to a complex historical rationale explained in the Bible, those Jews and their descendants down to this day have always retained for the specifically "Jewish" People -- in addition to its popular name Yehudim -- the companion rhetorical, poetic, high-register, mystical, metaphysical, liturgical, sacred name "Israel" (Heb: יִשְׂרָאֵל). This powerful cultic ethnonym appears in many biblical passages including the famous: "Hear, O Israel!" (Heb: Shema Israel! שְׁמַע יִשְׂרָאֵל‎). In Talmudic usage, the phrase "community of Israel" (Heb: knesset Israel קנסט ישראל) points to the multigenerational Jewish People -- past, present and future. In mid-May 1948, parallel religious, historical and linguistic considerations weighed heavily in the choice of "State of Israel" (Heb: Medinat Israel מדינת ישראל) as the official name for the new Jewish country.


Aboriginal by genetics alone?

Nazis, racists and racialists may dissent, but there is currently no authoritative political or legal doctrine of the aboriginal rights of genes or of the self-determination of genes. Rather, aboriginal and self-determination rights pertain to a culturally complex, sociological "People" born via general self-identification under a specific name, like "Jews" (Heb: Yehudim יהודים‎).

This explains why the modern political and legal idea of peoplehood is flexible enough to embrace the specifically "American" People, which is famously of mixed ancestry; and also the virtually homogeneous, self-identified "Japanese" People. Thus, peoplehood is available to the population of a nation-State like Croatia, with a very high percentage of common ancestry; but also to the population of Canada, a country for the most part recently settled by ethnically diverse migrants. There, common ancestry can be less salient, with the distinct "Canadian" People now more importantly self-defined by shared institutions, laws, citizenship and territory.

For profound practical reasons, historic or remixed populations sometimes opt to rebrand with new self-identifications that are always politically meaningful. Thus, a new named People emerges from time to time (e.g., the Québécois); while an older distinct People may significantly subdivide or disappear -- in most cases, with genes and cultural characteristics partly persisting in populations of one or more other Peoples.

For example (as discussed in detail below), it was only in the period after the June 1967 Six-Day War that the great Arab People subdivided to give birth to a distinct "Palestinian" People. This specifically "Palestinian" People was born when a particular Arab population -- exactly as it was post 1967 -- for the first time generally self-identified by referring to the toponym "Palestine." Such rebranding powerfully signaled politically; hardly a surprise in connection with ethnogenesis which is mostly a sociological phenomenon. 

An existing People can today claim to be aboriginal either in its own name or perhaps by virtue of direct succession from an immediate parent People that had itself already claimed to be "the" aboriginal People there. But, a specific People cannot now suddenly claim to be aboriginal, solely by virtue of some recently alleged genetic descent from a culturally remote or unrelated ancient People with a different name.

Today turning to antiquity to make an aboriginal claim in its own name, a distinct modern People needs to show not only some credible genetic roots, but also a continuing socio-cultural identity that, without a break, reaches back across each century to the relevant historical time.

Logically and juridically, a current People cannot now make an aboriginal claim in its own name with respect to historical periods before its own ethnogenesis, i.e. when the pertinent population did not yet generally self-identify as that particular People. Nor can a distinct, modern People's right to national self-determination now be claimed in its own name so as to retroactively apply in an historical period before its own ethnogenesis.

Which is "the" aboriginal People?

Among the distinct, self-identified Peoples now living in a country or region, the one with the best claim to be aboriginal is the specifically named People that was there first in time. Without reference to numbers, this now existing aboriginal People is distinguished from the other current local Peoples which subsequently either were formed in the land (indigenous) or came there via conquest, migration and settlement.

For example, 1860s British North America witnessed creation of a new country called "Canada." In this connection, the Fathers of Confederation intentionally crafted a new "political nationality" to unite several mostly settler populations with contrasting self-identifications, largely based on differences of language, religion and ancestry. But across the 20th century, Canada completed its own trajectory "from colony to nation." According to the Supreme Court of Canada, a new specifically Canadian People gradually emerged via a process of general self-identification. Because this ethnogenesis occurred at home, this nascent "Canadian People" as such is certainly indigenous to Canada.

Nonetheless, the North American Indian tribes there significantly remain the "First Nations." They are still among the aboriginal Peoples of Canada, though some Indian bands now number only a few hundred individuals. Nor can their special status as "first in time" be erased, because the subsequently born "Canadian" People is also indigenous or because the First Nations are now just a fraction of Canada's population.

Like the First Nations, the Jewish People for more than two millennia has always had the strongest claim to be the aboriginal People in its ancestral homeland -- though for most of those centuries, Jews there were but a small percentage of the local inhabitants. Nor is this persistent Jewish claim to be the aboriginal People there now in any way weakened because:
  • the majority of Jews have at various times lived elsewhere;
  • Jews are now once again the local majority; and
  • local Arabs after 1967 generally opted to rebrand with a new self-identification as the distinct "Palestinian" People -- which as such is arguably indigenous, as so recently born mostly between the Jordan River and the Mediterranean Sea.

Redemption via return to the land

Matters relating to entry, sojourn and settlement are key to Judaism's understanding of history. This responds to God's biblical command to live in "the land of Israel" (Heb: Eretz Israel ארץ ישראל). Entry and settlement are crucial because Jewish religion/history subjectively focuses on repeated migrations back to the promised land as a redemption of the Jewish People. First, there was the return to settle in the land after the biblical exodus from Egypt. Second, came the Jewish People's return to Eretz Israel after the Babylonian exile in the 6th century BCE. Finally, throughout the Common Era, there is the prospect of the Jewish People's redemption to be effected by Jews persistently "ascending" (Heb: aliyah עֲלִיָּה‎) to settle in Eretz Israel. Thus, the essential truth is that most Judaism has been "Zionist" millennia before the late 19th-century birth of political Zionism as a secular movement.

As in the Declaration on the Rights of Indigenous Peoples, aboriginal rights characteristically feature access to and use of tribal lands, including sacred sites and holy places. In this vein, Jews have always claimed (inter alia) rights to visit and/or dwell in their ancestral homeland. And significantly, they have stubbornly done so for more than two thousand years. Across the centuries, some then self-identified "Jews" always lived in their aboriginal homeland; and some other Jews, whether from the Mideast or abroad, persistently perceived a duty and desire to join them there.


Jewry's ties to homeland were famous

During the Roman period when Jews were the local majority, several million Jews worldwide felt strong religious obligation to famously make steady, annual payments for the upkeep and ceremonies of the Second Temple in Jerusalem. Roman emperors repeatedly reaffirmed this then controversial right of Jews throughout the Empire to contribute to the Temple's expenses. Stubbornly sticking to their own lunar calendar, Jews from Egypt to Babylon watched for the mountain-top signal fires that for centuries relayed from the Temple authoritative news of the start of the new month (Heb: rosh chodesh ראש חודש‎‎). The Second Temple was also the focus for widespread Jewish pilgrimage from the Mediterranean lands and beyond.

Jews were still the local majority for several centuries after the 70 CE destruction of the Second Temple. During this later Roman period, Jews from near and far continued pilgrimage, but now with more focus on some other sacred sites like the Tomb of the Patriarchs in Hebron. Far-flung Jewish communities of the Roman Empire joined synagogues elsewhere in offering yearly payments in pure gold (aurum coronarium) to support their religious leaders in Palestine, until the Jewish Patriarchate there was abolished in the early fifth century CE. Roman emperors also explicitly confirmed the sometimes contested right of the Jews to collect the aurum coronarium and send it to Palestine. This ancient practice and its imperial confirmation were key expression and recognition of "organized Jewry in the Roman Empire."

For around fifteen hundred years after the abolition of the Palestinian Patriarchate, Jewish communities around the world regularly contributed to the halukka (Heb: חלוקה‎‎), a fund to help pious and/or indigent Jews living in Eretz Israel. With respect to obligations of charity, Jewish law (Heb: halacha האלאכהא) exceptionally prioritized helping the poor Jews of Eretz Israel over indigent Jews in the diaspora. Similarly recognized for many centuries was individual and collective Jewish responsibility to locally give alms to support Jews traveling to Eretz Israel, whether for pilgrimage or settlement.


Religious importance of living in the land

Fierce focus on sacred homeland was confirmed by the enduring high authority of the Mishneh Torah (מִשְׁנֵה תּוֹרָה) which Moses Maimonides finished in Egypt around 1180 CE. He was a famous physician, philosopher and rabbi. But, he was also twice State-appointed head (Arabic: ra'is al-yahud رأس اليهود) of all the Jewish communities of Saladin's new Ayyubid Sultanate which was then fighting the Christian Crusaders in the Holy Land:
Great sages would kiss the borders of Eretz Yisrael, kiss its stones, and roll in its dust. Similarly, Psalms 102:15 declares: "Behold, your servants hold her stones dear and cherish her dust." The Sages commented: Whoever dwells in Eretz Yisrael will have his sins forgiven as Isaiah 33:24 states: "The inhabitant shall not say 'I am sick.' The people who dwell there shall be forgiven their sins." Even one who walks four cubits there will merit the world to come and one who is buried there receives atonement...
Such subjective rabbinic emphasis on living in Eretz Israel was just one side of the coin. The other side was some objective, companion understanding from the sultan. For example, Saladin early in his reign confirmed the rights of communal autonomy which Mideast Jews had previously enjoyed under the Fatimids. In 1187 CE, Saladin conquered Jerusalem and three years later invited Jews to return to settle there. This must have delighted Maimonides. During the preceding nine decades, the Crusaders had mostly excluded Jews from the two holy cities of Hebron and Jerusalem. After Saladin's 1190 invitation, Jerusalem once again attracted a significant Jewish population, including from as far away as France.

Judaism, the "aboriginal" faith

Across two millennia, there have been important reciprocal influences among Judaism, Christianity and Islam. But, the latter two faiths generally acknowledged some historical derivation from Judaism as forerunner. Especially during their respective periods of local rule, Christian and then Islamic political, cultural, and demographic connections to Jerusalem and the Holy Land usually came with some awareness that Judaism there was first in time. For example, the two later religions theologically understood that, like the Jews, they too revered the Lord God of Israel. The two later faiths also importantly validated the Jewish historical narrative in the Hebrew Bible, which had considerable influence on the development of first Christianity and then Islam.

Let us recapture attitudes as they were before crystallization of the modern political dispute over Jewish self-determination in the Holy Land. Especially during their respective periods of local rule, Christians and then Muslims for close to two thousand years were generally aware of a broader context, in which the Jewish People always had a special connection to the land of its birth. There, Jews were subject to permanent discrimination, periodic persecution, and episodic restriction. But, across the centuries, minority status there generally did not preclude (inter alia) Jewish entry, sojourn and settlement. Nor are rights to such millennial aboriginal practices now diminished, because today Jews are again the majority of the local population.

Aboriginal vs. majority rights

Aboriginal rights are not invariably minority rights; but, in a minority context, aboriginal rights significantly contrast with majority rights, and limit the right of the current majority to decide all matters without regard to the aboriginal minority. This reminds us that "majority rules" is not a universal moral, political or legal principle that invariably applies to all subject matter, under all circumstances, and at all times.

Abundant polemical references to historical demography suggest that retrospectively imagining something like a hypothetical majority vote in an earlier period is now often an unspoken premise underlying current judgments about the moral weight of history. If so, we should recall that "majority rules" is by itself a relatively narrow principle that is notably more procedural than substantive.

Thus, we can safely suppose that, since antiquity, there was never a time when a moral or natural-law right to (potentially) bar Jews from their aboriginal homeland could have been derived simply from a hypothetical majority vote. In every conceivable instance, there would also have to have been alleged some further compelling reason (e.g., self-defense) as a substantive moral or natural-law justification for then (potentially) precluding one or more of Jewish entry, sojourn and settlement. And, with reference to each particular historical case, the moral or natural-law cogency of any such substantive reason for then (potentially) barring Jews would today have to be carefully weighed within the specific equities of that particular time and space, to which that justification pertains.

This current requirement of contemporary and contextual fairness points to some strikingly different historical, geographical and demographic situations. Thus, for potential examination are specific local circumstances in the broader context of the whole world as it once was. But also to be considered is the immediate framework of (for example) the erstwhile Fatimid, Ayyubid, Mamluk, Ottoman or British Empires. And, in that last British case, careful account must be taken of Mandate Palestine, both east and west of the Jordan River (1922-1946). But, Transjordan (Eastern Palestine) also remains part of the moral and political equation, long after the June 1946 entry into force of the UK treaty that cut the Hashemite Kingdom of Transjordan from Mandate Palestine.

Nor logically can such a retrospective assessment of a possible moral or natural-law justification for then (potentially) barring Jews now refer anachronistically to the interests of a distinct "Palestinian" People for periods before 1967, when local Arabs did not yet generally self-identify as the distinct "Palestinian" People.

If you like, you can retrospectively test the morality and fairness of then cancelling age-old Jewish rights of entry and settlement with the example of the May 1939 UK White Paper which is discussed in some detail below.

Yesterday's majority lacks authority

Is it appropriate to now make judgments about the current moral weight of history based consciously or unconsciously on the metaphor or fiction of a particular hypothetical majority vote that was factually never held in the past?

The stark reality is that the majority principle is a democratic "decision rule" that a current polity uses to select among present alternatives. Needless to say, the dead cannot rise from the grave to vote today; nor can we now issue writs for holding a referendum in the past. Thus, we can apply "majority rules" right now in our own polity, but not to an earlier historical period and place where -- for any number of important reasons -- men and women had failed to apply it in their own time.

Furthermore, the logic that renders impossible such a retroactive application of "majority rules" is significantly complemented by the related principle that it is today's majority that governs rather than that of yesterday. Even within a current, continuing polity, the practical acceptance of the "majority rules" principle normally depends on the systemic requirement for holding elections from time to time. And, the same iterative context that makes it possible for the losing party to peacefully accept temporary defeat, also requires the supplementary rule that it is the present majority that now governs. Thus, the authority of past majorities is famously evanescent. They are "the snows of yesteryear" to borrow an evocative phrase from 15th-century Parisian poet François Villon.  

For these reasons, the majority principle alone cannot now confer rights on a current minority solely because it had once been the majority. For example, think about the UK Liberal Party. It was a giant in British politics in the late 19th and early 20th centuries, but is currently a negligible player. Does anybody now suggest that the great Liberal landslide victory in the UK general election of 1906 by itself suffices to confer rights on that political party today?

Moreover, consider the city landscape that is the 13th Congressional District of the State of New York. This urban constituency has experienced substantial demographic change and arbitrarily shifting borders, just like the 20th-century "Palestine" that was politically re-invented no earlier than the First World War. Including Harlem, the 13th Congressional District was majority Black American during the first part of the 20th century. But today, 55 percent of the local population is Hispanic and only 27 percent Black American. Should Hispanics have been told to stay out of the neighborhood? With regard to the 13th District, would anyone now argue that the minority Black Americans still have rights flowing from the one circumstance that they had been the majority there before 1950?

In the same way, taken in isolation, the bare fact that one hundred years ago Arabs were the majority between the Mediterranean Sea and the Jordan River logically cannot by itself create or sustain any current political, moral or legal right; and, most certainly not against the aboriginal Jewish People, which is today once again the majority there.


"The Jewish movement not imperialist"

As across the last two millennia, so today! The presence of self-identified "Jews" in their ancestral homeland has always been legitimately aboriginal, not an expression of colonialism or imperialism. Agreement on this aboriginal aspect emerges clearly from two contrasting, early Arab responses to political Zionism.

Jerusalem Mayor and Ottoman Parliamentary Deputy
Yusuf Ziya Pasha al-Khalidi (1829-1907).
يوسف ضيا باشا الخالدي
In 1899 he wrote to the Chief Rabbi of France:
"Who can contest the rights of the Jews regarding Palestine?
Good Lord, historically it is really your country!"

Born in Jerusalem in 1829, Yusuf Ziya Pasha al-Khalidi was an urbane, polyglot intellectual. He had served as mayor of, and Ottoman parliamentary deputy for Jerusalem where Jews were once again the majority of the city's population. As a Muslim, an Arab and a subject of the Ottoman sultan, he wrote (March 1, 1899) to the Chief Rabbi of France, Zadok Khan, a friendly letter strongly warning against political Zionism. Therein, Yusuf Pasha explicitly welcomed some more Jewish immigrants provided that they would become loyal Ottoman subjects. But, he emphasized that the current political, military, ethnic and religious realities in the Ottoman Empire made Zionism impossible. Nonetheless, Yusuf Pasha's letter portrayed Palestine as the ancestral land of the Jews and validated their historical claim to be aboriginal there:
Qui peut contester les droits des Juifs sur la Palestine? Mon Dieu, historiquement c'est bien Votre pays! [Who can contest the rights of the Jews regarding Palestine? Good Lord, historically it is really your country!]
After the 1918 shattering of the Ottoman Empire, more positive to the practicability of political Zionism was the Hashemite Prince Feisal ibn Hussein who was pertinently the principal Arab delegate at the 1919 Paris Peace Conference. There, American Zionist representative Felix Frankfurter received from Feisal a March 3, 1919 letter saying: "We will wish the Jews a most hearty welcome home." Specifically referring to Zionism, Feisal therein acknowledged: "The Jewish movement is national and not imperialist."



The twelve tribes of Israel straddled the Jordan River.

The aboriginal home

Generally and locally, many Muslims and most Arabs stubbornly reject the legitimacy and permanence of Israel as "the" Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its larger aboriginal territory. That ancestral homeland stretched from the Mediterranean Sea to lands east of the Jordan River. For example, the Hebrew Bible tells us that the Twelve Tribes straddled the Jordan River. Also extending eastward across the Jordan River was the northern kingdom of ancient Israel and then later Hasmonean Judea.

Since antiquity, this country was known to Jews as "the land of Israel," in Hebrew, Eretz Israel (ארץ ישראל). The enduring cultural idea of the Jewish People's relationship to that particular bounded territory was always subjectively -- and often also objectively -- a famous ingredient in Jewish peoplehood. The Jewish case is a classic example of the sociological truth that conceptually a "home" is way more than just a tangible "house" and a "homeland" much more than merely a measured stretch of the earth's surface.


Hasmonean Judea extended east of the Jordan River.

Christianity adopts elements from Judaism; and Islam similarly draws from the two older monotheistic religions. For this reason, "the Holy Land" as later understood by Christians (Latin: terra sancta) and by most Muslims (Ottoman-Turkish: arz-i mukaddes ارض مقدس) was geographically identical to the earlier Jewish concept of Eretz Israel (ארץ ישראל).

For centuries Christians remembered a Roman "Palestine"
that extended east of the Jordan River.



What was "historic" Palestine?

Including forcible deportation of some Philistines, coastal Philistia (Standard Babylonian Akkadian: Pilištu) features more than once in the early 7th-century BCE cuneiform inscriptions of the Neo-Assyrian King Sennacherib. Far better known are the many references in the Hebrew Bible. For example, the Book of Exodus specifically refers both to the "Sea of the Philistines" (Heb: Yam Pelishtim  יָם פְּלִשְׁתִּים) and to the littoral "Land of the Philistines" (Heb: Eretz Pelishtim אֶרֶץ פְּלִשְׁתִּים). The first extant Greek references to "Palestine" come eight times from alleged eyewitness Herodotus who wrote perhaps around 430 BCE. Not inconsistent with the aforementioned earlier sources, Herodotus perhaps means a particular stretch of the Mediterranean coast between Phoenicia and Egypt. 

Greek and Roman writers into the 1st century CE, with some exceptions, understood Palestine as just the seaside strip associated with the memory of the Aegean Philistines who disappeared before the 6th century BCE. But such narrow geographical usage expanded around 135 CE, when the entire Roman Province of Judea was officially termed "Palaestina" to punish Jews for their periodic, stubborn revolts against imperial Rome.

This Roman administrative toponymy explains why "Palestine" came to mean the entire Holy Land for Christians, eventually including those speaking Arabic. Authoritative 19th-century Ottoman-Turkish dictionaries by Sir James Redhouse indicate that Mideast Christians referred to the biblical "land of promise" or "the Holy Land" as Diyar Filistin (ديار فلستين), meaning "lands of Palestine."

As a Christian synonym for the Holy Land, "Palestine" was for centuries just a bare historical reference -- nothing more than a fond memory of the early 7th century CE, when Palaestina was still part of the Roman-Byzantine Empire, with Christianity as official faith. Thus, a visit there prompted Mark Twain to accurately observe (1869): "Palestine is no more of this work-day world. It is sacred to poetry and tradition -- it is dream-land."

This remembered, but literally non-existent Palestine had for centuries been imagined on European and American maps as invariably including lands east of the Jordan River. Thus, the revered 1911 edition of the Encyclopaedia Britannica captured the correct historical and geographical understanding in specifying that the Jordan River separates "Western Palestine" from "Eastern Palestine," with the latter extending as far as the beginning of the Arabian desert. Moreover, every actual "Palestine" that has historically existed, from the end of the 4th century CE until June 1946, has always included part or all of the territory that is now the Hashemite Kingdom of Jordan.

Holy Land's population migratory?

Though Classical demography is a guessing game, Jews may have numbered several million in the early Roman Empire. For more than a century before the 70 CE destruction of the Second Temple, most Jews preferred living in various places around the Mediterranean and beyond, rather than in their aboriginal homeland. In Eretz Israel (ארץ ישראל), Jews nonetheless remained the majority, perhaps into the 6th century CE. Though some Jews always preferred to stay in their aboriginal homeland, others were continually moving in and out -- a migratory pattern that has endured to this day.

Nor should it be presumed that such a migratory pattern only pertained to local Jews. Across the centuries, other ethno-religious components (e.g., Muslim Arabs) were also significantly coming and going. Millennial mother-to-daughter continuity was not the exclusive demographic pattern in this Afro-Asian corridor. There, the last thousand years have seen total local population occasionally drop to remarkably low levels. Such rounds of radical depopulation were subsequently partly reversed by some indigenous growth. But from time to time, there have also been repeated waves of fresh migrants drawn from various ethno-religious groups, whether from adjacent regions or further afield.

For example, in the late 18th and early 19th centuries, regional rulers like Zahir al-Umar (Bedouin), Ahmet al-Jazzar (Bosnian), and Mehmet Ali (Albanian) invited farmers and other Muslim Arab migrants from Egypt and elsewhere to help repopulate the land. In addition, there were always newcomers who arrived without authorization. For example, from the sixteenth to eighteenth centuries, Bedouin from neighboring regions significantly migrated to the Holy Land, where some became sedentary, as encouraged by the Ottomans.

The 1937 Peel Commission said there was not much effective control of land frontiers which, during the interwar period, remained mostly open to undocumented Arab migrants seeking opportunities in Western Palestine. The attraction there was the Jew-driven local economy which was then well known to be rising faster than in the neighboring Arab countries. If this migratory pattern was true for most of the first half of the 20th century, when various treaties had already delineated some State boundaries, how much truer for overland migrants in earlier periods when internationally the Holy Land had no land borders whatsoever?

During the last millennium, the minority demographic of then self-identified "Jews" probably followed a pattern that was roughly a scaled-down version of what was happening there generally. Thus, Jews too were coming and going, and some who left later returned. During tough times, Jews maintained their local presence partly “relay race” style, with newcomers taking the baton from longtime Jewish residents. But whether stationary, entering or leaving, Jews always saw themselves as part of the distinct Jewish People with the strongest claim to be aboriginal there. And what is more, this stubborn Jewish self-perception was sometimes shared by non-Jews like Napoleon Bonaparte, Yusuf Ziya Pasha al-Khalidi, Arthur Balfour, David Lloyd George, Feisal ibn Hussein and Woodrow Wilson.


Always Jews in the Holy Land?

The Hebrew Bible, the Christian Gospels and the Muslim Koran all refer to the Jewish People and its connection to the Holy Land (ארץ ישראל). Since antiquity, there has never been a time when then self-identified "Jews" were absent from the Holy Land. Even when Jewish numbers dropped to a low point, the Holy Land was still home to learned rabbis famous throughout the Jewish world. Across at least 2,600 years, the then self-identified, specifically "Jewish" People continuously kept the same subjective/objective identity that always famously included significant demographic and cultural links to its native land, Eretz Israel (ארץ ישראל).

In the first five centuries of the Common Era, Jews were still the majority in Palestine where they played a key role in Jewish civilization, including completion of the Jerusalem Talmud. Rabbis there then thoroughly discussed the geographic limits of Eretz Israel (ארץ ישראל), because some specific rules for Jewish religious practice only applied within the boundaries of the aboriginal homeland of the Jewish People.

Written in Hebrew characters are the thousands of medieval and later documents from the famous Cairo Geniza. These are among the contemporary historical sources that reveal much about Jewish life in the Holy Land, during the subsequent period stretching from the Muslim conquest in the fourth decade of the 7th century CE to the Crusader victory in 1099.

Deep religious attachment to ancestral homeland motivated the pilgrimage of 12th-century physician, philosopher and poet Yehuda Halevy. He traveled from the Iberian Peninsula via Egypt, and died near Jerusalem in 1141. After specifying the uniqueness of Eretz Israel for the proper practice of Judaism, Yehuda wrote: "Jerusalem can only be rebuilt when Israel [i.e. the Jewish People] yearns for it to such an extent that they embrace her stones and dust."

During this period of the Crusaders and the Ayyubids, Acre was an important center for Holy Land Jews, about whom we learn from a variety of sources. For example, pertinent are many Geniza documents and also accounts by the 12th-century Jewish travelers Benjamin of Tudela and Rabbi Petachia of Ratisbon. Acre was then for a brief time the home of Moses Maimonides and later of Moses Nachmanides, two eminent rabbis who encouraged Jews to live in Eretz Israel (ארץ ישראל) for profound religious reasons.



The Koran is an historical document providing evidence about
the existence of the Jewish People and its link with
the Holy Land or Eretz Israel (ארץ ישראל).

During the Mamluk period (1250 -1516), Jerusalem was sometimes seat for a deputy to the Egypt-based Jewish prince or leader (Heb: nagid נגִּיד) who as ra'is al-yahud (رأس اليهود) headed all the Jewish communities of the sultanate. Fifteenth-century Holy Land Jews also feature in the letters of Rabbi Obadiah ben Abraham Bertinoro and the travelogues of Christian pilgrims like Arnold van Harff, Martin Kabatnik and Felix Fabri. There were also always Jewish pilgrims, about whom a local Jewish guide (early 1480s) told Felix Fabri:
The Jews pile up these stones to occupy a place beforehand, for they hope that erelong they will again inhabit the Holy Land; and therefore their pilgrims, who come from far countries, take places beforehand, in which places they hope that they shall dwell after the return. 

Richer are sources from the four Ottoman centuries ending in 1917-1918. For example, 16th-century doomsday registers (Ottoman-Turkish: مفصل دفترى  mufassal defteri) record the names of local Jewish tax-payers. Evidence also comes from documents like some late 18th-century account books of the Jerusalem Jewish community. With the 19th century, travel books, letters, and consular reports join a flood of other sources about local Jews who also told their own stories. Though the number of Jews there grew absolutely, they were then still just a fraction of the total population which -- including all the Muslims, Christians and Jews -- notably remained astonishingly low; probably, very much lower than in the early Roman Empire.


Aboriginal Jews, Greeks and Armenians

Among several other aboriginal Peoples of the Ottoman Caliphate were the Jews, the Greeks and the Armenians. The age-old Jewish People is aboriginal to its ancestral homeland, Eretz Israel (ארץ ישראל), in the same way that the storied Greek People is aboriginal to the Aegean region and the Armenian People has millennial rights in its historic lands. In the Mideast and Mediterranean, the continuous history of the Jews, Greeks and Armenians reaches back to antiquity.

Pertinently, these three ancient Peoples were already present before arrival from Central Asia of any of the Turkic Peoples; and obviously long before the 13th-century CE origins of the empire of the Ottoman Turks. By the time of the Ottoman conquest, each one of these aboriginal Peoples already had its specific cultural identity that was in all three cases so thoroughly entwined with its own distinctive, ethnic religion.

Across la longue durée, these three aboriginal Peoples did not like each other. Nonetheless, Jews, Greeks and Armenians had long-term common experience as victims of the Muslim Turks, right up until the collapse of the Ottoman Empire at the end of the First World War. To the point, each one of these three aboriginal Peoples then famously ranked as an historically-victimized population in terms of the evolving human-rights methodologies that were emerging at a faster pace during and immediately after the First World War. Additionally, while the postwar settlement was being crafted, it was known that Jews were being brutally victimized in then chaotic Eastern Europe and killed by the tens of thousands in pogroms in the Ukraine.

In this human-rights context, an historically-victimized People is now understood to be normally entitled to: firstly, a sincere apology; secondly, significant reparation; and thirdly, extra vigilance lest there be renewed victimization whether by the same or other perpetrators. Thus, Zionism as a remedial measure made perfect sense to Allied statesmen like South African Prime Minister Jan Christiaan Smuts who had wartime experience in Palestine, helped found the League of Nations, and played a prominent role in designing the postwar Mandates system. After saluting the stubborn peoplehood of the Jews and recognizing that "their history has been one of martyrdom," Smuts (November 3, 1919) presciently pointed to Palestine as their place of refuge:
From those parts of the world where the Jews are oppressed and unhappy, where they are not welcomed by the rest of the Christian population, from those parts of the world you will yet see an increasing stream of emigration towards Palestine; and in generations to come you will see a great Jewish state rising there once more. And I hope that its glories will be greater than even those of the state of which we read in the Bible.


Lord Byron championed the aboriginal rights of the Greek People.

In the early 19th century, some prominent personalities like the English poet Lord Byron enthusiastically championed the aboriginal rights of the Greek People. Partly for this reason, some of the European Powers intervened to help Greeks win their independence from the Ottoman Empire. In 1821 CE, when some Greeks began their revolt against the sultan, they were probably a minority of the population in the territory that is now modern Greece.

In the 19th and 20th centuries, Greek history has been partly about the hundreds of thousands of diaspora Greeks, who gradually migrated to their core ancestral homeland. For example, many returned to Greece as refugees after the First World War, when British Prime Minister David Lloyd George had unsuccessfully backed the aboriginal rights of the Greek People to the Anatolian littoral. There, large indigenous Greek communities like Smyrna (Izmir) persisted from antiquity until 1922, when they were savagely destroyed by the Muslim Turks who in 1915 had killed one and a half million Armenians.

UK Prime Minister David Lloyd George backed the
aboriginal rights of Greeks in Anatolia and of Jews
 in the Holy Land = Eretz Israel (ארץ ישראל).

The horrific atrocity that was the 1915 Armenian genocide shocked the conscience of the Western world, notably including the Christian sensibility of both Lloyd George and USA President Woodrow Wilson. Writing to Congress about the plight of the Christian Armenians, Wilson (1920) significantly described his fellow Americans as:
the greatest of the Christian peoples [with] ... an earnest desire to see Christian people everywhere succored in their time of suffering, and lifted from their abject subjection and distress and enabled to stand upon their feet and take their place among the free nations of the world.
The Armenian genocide was also an important part of the broader moral context in which the USA and the Allied Powers decided to recognize both the Armenian People's right to self-determination in its ancestral territory and the Jewish People's historic rights in the Holy Land. Until the 1917-1918 British conquest, the Holy Land was still part of the Ottoman Empire which Woodrow Wilson reviled. As early as the 1912 presidential campaign, he had already pledged: "If ever I have the occasion to help in the restoration of the Jewish People to Palestine, I shall surely do so."

For Jews of the Holy Land, the First World War brought repression, persecution, starvation, deportation and flight. Their numbers there dropped sharply from around 85,000 in late 1914 to about 40,000 by the time of the Mudros Armistice (October 30, 1918). During the conflict, Jews fleeing Western Palestine and other Jews who stayed there were both able to receive some crucial help from the U.S. Navy, because the USA remained neutral relative to the Ottoman Empire.


Palestine 1916, (left) Friedrich Kress von Kressenstein with top Austrian, Baron Lager.
Kress von Kressenstein was leading Ottoman forces facing the British in Egypt.
During WW1, he was among the German soldiers and diplomats who

stopped the Ottomans from driving the Jews from the Holy Land.


Locally and internationally, it was then reasonably feared that Jews in the Holy Land might soon meet a grim fate like that of the hapless Armenians. The supreme Ottoman leader there, Ahmet Djemal Pasha was already infamous for his role in the 1915 Armenian genocide. In 1917, Djemal wanted to begin similar death marches to drive Jews out of Western Palestine. However, he was stopped by principal ally Germany, including Generals Erich von Falkenhayn and Friedrich Kress von Kressenstein who were then serving the Ottomans as commanders on the Palestine Front.

Well informed about the perilous wartime situation of Jews there, President Wilson in June 1917 confided to American Zionist leader Rabbi Stephen S. Wise:
When the war will be ended, there are two lands that will never go back to the Mohammedan Apache. One is Christian Armenia and the other is Jewish Palestine.
Then urgently in need of American wartime help, the UK government knew that it had to defer to USA power and preference. Thus, the Balfour Declaration, promising best efforts towards "establishment in Palestine of a national home for the Jewish people," was adopted (October 31, 1917) by the UK War Cabinet only after careful consultations with President Wilson. Entirely consistent with the Balfour Declaration were Wilson's "Fourteen Points." Therein, he included the pertinent requirement (January 8, 1918):
Nationalities that are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development.
Thinking both globally and locally, President Wilson perceptively understood that there was no contradiction between seeking to realize in Palestine the right to self-determination of the great Jewish People of world history and the companion fact that Jews were undeniably also one of the Mideast Peoples that had long suffered under Ottoman rule.

USA President Woodrow Wilson
 confidentially approved a draft of
the 1917 Balfour Declaration
 before its adoption by the UK cabinet.

President Wilson's support for immediate Jewish rights of entry and settlement was unequivocally expressed in the official instructions for the USA delegation to the Paris Peace Conference. These significantly required (January 21, 1919):
That the Jews be invited to return to Palestine and settle there, being assured by the Conference of all proper assistance in so doing that may be consistent with the protection of the personal (especially the religious) and the property rights of the non-Jewish population, and being further assured that it will be the policy of the League of Nations to recognize Palestine as a Jewish State as soon as it is a Jewish State in fact. It is right that Palestine should become a Jewish State, if the Jews, being given the full opportunity, make it such. It was the cradle and home of their vital race, which has made large spiritual contributions to mankind, and it is the only land in which they can hope to find a home of their own; they being in this last respect unique among significant peoples.

Aboriginal rights of the First Nations

From 2003 to 2006, human-rights lawyer Irwin Cotler was Canada's Minister of Justice, with responsibilities notably including aboriginal rights. During that time, Cotler began publicly arguing that the Jewish People is aboriginal to its ancestral homeland (ארץ ישראל) in the same way that the First Nations or Indian tribes are aboriginal to their ancestral lands in the Americas.

The modern Jewish People claims both aboriginal and treaty rights in parts of its ancestral homeland. Aboriginal and treaty rights are also claimed by the Aboriginal Peoples of Canada, including the First Nations. They strongly believe that their sovereign rights to their tribal lands extend back to the beginning of time, i.e. long before the origins of European, international, and Canadian law. In the same way, the age-old Jewish People's claims in its ancestral homeland (ארץ ישראל) reach back to antiquity and thus antedate the post-Classical birth of both Europe and the Islamic civilization.

Common Law courts began recognizing aboriginal rights in the 19th century. From 1982, the rights of the Aboriginal Peoples of Canada have explicitly featured in Canada's Constitution Act. The Supreme Court of Canada has decided that, where a First Nation maintains demographic and cultural connections with the land, aboriginal rights can survive both sovereignty changes and the influx of a new majority population, resulting from foreign conquest. Dealing with claims of right on all sides, the Court seeks to juridically reconcile the subsequent rights of newcomers with the aboriginal rights of a First Nation.

Today, the concept of aboriginal rights is also an important topic in Australia, New Zealand and the United States, and is now receiving some more attention internationally. For example, pertinent to the millennial phenomenon of aboriginal rights is the Declaration on the Rights of Indigenous Peoples. For obvious political reasons, this UN instrument notably lacks a legal definition of “indigenous People.” Also due to political sensitivities, international law has never been able to formulate an agreed legal definition of “a People” for the companion doctrine of the self-determination of Peoples.

Spot on is the comparison between the aboriginal rights of the Jewish People and those of the First Nations of the Americas. On either bank of the Jordan River, "the Jewish People" was the aboriginal tribe and "the Arab People" the interloping settler population, notably including major waves of Arab immigration in both the 19th and 20th centuries CE.

For more than two thousand years, Jews have stubbornly exercised their aboriginal rights of entry, sojourn and settlement. Thus, whether a thousand years ago or today, self-identified "Jews" returning to join other Jews in the Holy Land (ארץ ישראל) are not like the 17th-century Pilgrim Fathers who built English settlements in America, where they had neither ancestors nor native kin. Nor is the Jewish People in its own aboriginal homeland ever to be compared with Dutch Boers in South Africa or French colons whether in Algeria or along the Saint Lawrence River in Canada.


Canada's Constitution includes
the rights of the Aboriginal Peoples of Canada.

Judaism's focus on sacred homeland

The self-identified, specifically "Jewish" People, under that same name, has for more than two millennia continuously affirmed its historical and demographic connections to its ancestral homeland. Thus, Eretz Israel (ארץ ישראל) has for at least twenty-six centuries been a central element in the religion of Judaism. This territorial focus was described by British Foreign Secretary Arthur Balfour who had been UK Prime Minister (1902-1905). In 1919, he wrote:
The position of the Jews is unique. For them race, religion and country are inter-related, as they are inter-related in the case of no other race, no other religion, and no other country on earth. In no other case are the believers in one of the greatest religions of the world to be found (speaking broadly) only among the members of a single small people; in the case of no other religion is its past development so intimately bound up with the long political history of a petty territory wedged in between States more powerful far than it could ever be...
From antiquity, most Judaism has been a Messianic religion, including specific reference to the homeland of the Jewish People. Authoritative for centuries as a restatement of the law is the late 12th-century Mishneh Torah (מִשְׁנֵה תּוֹרָה) of Maimonides. This holds that belief in the coming of the Messiah is one of the thirteen essential articles of Jewish faith. For centuries, Judaism has affirmed that the Messiah will: (i) be a descendant of David, King of Israel; (ii) gain sovereignty over Eretz Israel; (iii) gather world Jewry together there; (iv) rebuild the Temple in Jerusalem; (v) restore full Torah observance in Eretz Israel; and (vi) bring peace to the whole world.

Born in Spain at the end of the 12th century, Moses Nachmanides was an influential rabbi, philosopher, physician and kabbalist. Himself migrating to the Holy Land, Nachmanides emphasized that God's biblical command to take possession of the promised land is directed to Jews of all generations, including the period of exile. Nachmanides strongly concurred with earlier Rabbis who had assessed that "dwelling in the Land of Israel outweighs all the commandments." 

Today, Jewish law (Heb: halacha האלאכהא) is probably the world's oldest continuously-functioning legal system. Jewish law has always explicitly recognized the Jewish People's legal rights in its aboriginal homeland, the precise boundaries of which were carefully defined by rabbinic discussion across the first three centuries of the Common Era. Make no mistake, more than two thousand years of halacha insist that the age-old Jewish People at the very least has ancestral rights of entry, sojourn and settlement in Eretz Israel.

How should we approach this longstanding phenomenon? One of the options is comparative law; namely, look at the role that history and civilization play in the aboriginal case law of the Supreme Court of Canada. There, in a purely secular context, a broad range of anthropological data -- like Judaism's persistent emphasis on God's gift of Eretz Israel to Abraham and his descendants -- would likely be seen as historical evidence of the continuing importance of that particular land in the distinct culture of that specific tribe, i.e. the Jewish People.


Jews are "the" aboriginal People

Of all extant Peoples, Jews have the strongest claim to be "the" aboriginal People of the Holy Land (Eretz Israel). There, the Hebrew language (Biblical Heb: יהודית yehudit) and the religion of Judaism gradually emerged, leading to the birth of a then self-identified, specifically "Jewish" People at least 2,600 years ago. Before then, the Holy Land was home (inter alia) to the immediate ancestors of the Jewish People, including personalities like Kings Saul, David and Solomon, famous from the Hebrew Bible.

Still earlier or at the same time, the Holy Land was also home to other Peoples -- like the Philistines, Phoenicians, Ammonites, Moabites, Edomites, and Samaritans. But with the sole exception of the few surviving Samaritans, all of those other ancient Peoples have long since vanished from the world. Nobody today is entitled to make new claims on their behalf, including by reason of a supposed genetic descent that is only recently alleged and without sound basis in history and genome science.

What then of that dramatis persona of world history known as "the Arab People"? As such, the great Arab People is aboriginal to Arabia, not the Holy Land. The religion of Judaism, the Hebrew language, and a then self-identified, specifically "Jewish" People had already been established in the Holy Land for about a thousand years before the 6th-7th century CE ethnogenesis in Arabia of the great Arab People -- the birth of which was approximately coeval with the emergence of Islam and Classical Arabic.

Nor traditionally did the great Arab People of world history claim to be aboriginal to the Holy Land.  Like Yusuf Ziya Pasha al-Khalidi and Prince Feisal, erudite Arabs always knew from the Koran that Allah had promised the Holy Land to the Jews, all of whom would return there by Judgment Day. Such Arabs were also keenly aware of their proud and persistent narrative that celebrated the heroic Muslim conquest of a Byzantine province then already inhabited by Jews, Samaritans, and Greeks.

From the initial Muslim conquest of the Holy Land in the fourth decade of the 7th century CE, Jews there suffered persistent discrimination and periodic persecution. However, neither the Arab People nor subsequent invaders succeeded in eradicating the local Jewish population or bringing an end to the enduring links between the great Jewish People and its aboriginal homeland.

To the contrary, for fourteen hundred years, then self-identified "Jews" continued to stubbornly exercise their millennial rights of entry, sojourn and settlement -- and, even more so after the mid-19th century. For example, Jews legitimately once again became the majority of the population in the city of Jerusalem from the 1860s. Across the 20th and 21st centuries, Jews still continue to exercise their enduring aboriginal rights of entry, sojourn and settlement. Thus, in the same way, Jews today are once again legitimately the majority between the Jordan River and the Mediterranean Sea.

This means that the Jewish People can now draw some steadily increasing benefit from the key doctrine of the self-determination of Peoples, which normally allocates territory by the national character of the current local population. At the same time, the Jewish People also continues to affirm aboriginal rights in parts of its ancestral homeland. And, it will be seen that these Jewish aboriginal rights still have some political and legal significance in the ongoing dispute caused by the stubborn refusal of many Muslims and most Arabs to recognize the legitimacy and permanence of Israel as the Jewish State.

The Jewish State

Most Jews round the world see Israel as "the" Jewish State, i.e. as the political expression of the self-determination of the age-old Jewish People in a part of its larger ancestral homeland. Like other Peoples, the Jewish People has a right to self-determination. Though the self-determination of the great Arab People is expressed via twenty-one Arab countries, Israel is the sole expression of the self-determination of the great Jewish People.

Some Western thinkers are now uncomfortable with the idea of a nation-State as the homeland of a particular historical People, i.e. a well-known People in history. If so, there is no special reason to target Israel, because other jurisdictions are also nation-States -- for example, the Canadian Province of Quebec, Japan, Greece, and the countries of the Arab League.

In theory and practice, the "nation-State" model does not have to conflict with fundamental civil and human rights for aliens or for citizens who do not ethnically self-identify as members of the historical People that constitutes the majority. Moreover, the nation-State can also accommodate collective rights for one or more minority Peoples. And, with regard to such individual and collective rights, Israel domestic law is comparable to what is provided by other legal systems, and superior to what is offered in other countries of the Mideast.

Israel born of the Ottoman Empire

Until the end of the First World War, the Holy Land was part of the Ottoman Empire. Thus, Israel and around two dozen other modern countries are in whole or in part successor States of the Ottoman Caliphate, which for four hundred years (1516-1918) was the principal Power in the Mideast. Apart from the ruling Turks, the Ottoman Empire was home to many other Peoples including Albanians, Vlachs, Greeks, Slavs, Copts, Armenians, Maronites, Alawis, Druze, Kurds, Circassians, Arabs and Jews.

For centuries, these Jews lived in a variety of Ottoman venues including Buda, Belgrade, Bucharest, Sarajevo, Edirne, Salonika, Constantinople, Bursa, Izmir, Aleppo, Damascus, Mosul, Baghdad, Basra, Cairo, Alexandria, Benghazi, Tripoli, Tiberias, Hebron, Safed, Jaffa, Gaza and Jerusalem.

Ottoman Empire at greatest extent in 1580 CE.

In November 1914, the Ottoman Empire opted to enter the First World War to fight against the UK and its Allies. As the fortunes of war began to favor the British army, the UK government addressed the question of what to do with the multi-national Ottoman lands both in the light of current British interests and the 19th-century liberal doctrine of the self-determination of Peoples. In this regard, the father of modern political Zionism, Theodor Herzl, in his 1896 manifesto The Jewish State, had already proclaimed that Jews, though living in many different places around the globe, constitute one People for the purpose of self-determination.

Theodor Herzl affirmed that the Jews are one People.

Why the Balfour Declaration?

The British decision to offer "best endeavours" toward establishing a national home for the Jewish People in Palestine had three principal motives: 

Firstly, Western Palestine was key protection for the eastern flank of the Suez Canal, the crucial gateway to British India. UK strategic thinkers valued Zionism partly as a humanitarian pretext to justify their plans for longtime British rule in Western Palestine, which otherwise would have been claimed by France. Moreover, Whitehall was convinced that, without this Zionist cover, President Wilson would have keenly resented indefinite British retention of Western Palestine as just another UK imperialist land grab. 

Secondly, a more urgent and immediate British goal was generating enthusiasm for the Allied war effort among several million Jews in Russia. After the March 1917 revolution that toppled Czar Nicholas II, Russia continued to be war weary and was known to be ready to abandon the Allied cause. The UK War Cabinet approved the Balfour Declaration just one week before Lenin's antiwar Bolsheviks seized power. 

Thirdly, a longer-term target was facilitating migration and settlement to gradually realize the Jewish People's self-determination in its ancestral homeland. This last aim was explained by Foreign Secretary Arthur Balfour, as recorded in the minutes of the War Cabinet's deliberations (October 31, 1917):
There were considerable differences of opinion among experts regarding the possibility of the settlement of any large population in Palestine, but he was informed that, if Palestine were scientifically developed, a very much larger population could be sustained than had existed during the period of Turkish misrule. As to the meaning of the words "national home," to which the Zionists attach so much importance, he understood it to mean some form of British, American, or other protectorate, under which full facilities would be given to the Jews to work out their own salvation and to build up, by means of education, agriculture, and industry, a real centre of national culture and focus of national life. It did not necessarily involve the early establishment of an independent Jewish State, which was a matter for gradual development in accordance with the ordinary laws of political evolution.
The pertinent UK government declaration was communicated to Anglo-Jewry leader Lionel Walter, Lord Rothschild, in a letter which was published on November 9, 1917.


The key phrase "national home for the Jewish people"
was repeated in several resolutions and treaties
ultimately endorsed by the 1923 Lausanne Treaty
 with Turkey, as successor to the Ottoman Empire.


A "Palestinian" People in 1919?

As Great Britain worked to defeat the Ottoman Turks, the world also began to learn about the national claims of the great Arab People. Here recall the wartime exploits of Lawrence of Arabia and Prince Feisal, both of whom were present at the 1919 Paris Peace Conference. There, a powerful searchlight was trained on the doctrine of the self-determination of Peoples, including the claims of the great Arab People.

But, nobody in Paris knew anything about a distinct Palestinian People. Had there then been such a specifically "Palestinian" People, its existence would certainly have been known to Prince Feisal, USA President Woodrow Wilson, France’s Prime Minister Georges Clemenceau, British Prime Minister David Lloyd George and to the other leaders who came to work on the peace treaties.

At the Paris Peace Conference, Versailles, January 1, 1919.
Left to right -- Rustum Haidar, Nuri as-Said, Prince Feisal,
Captain Pisani (behind Feisal), Lawrence of Arabia,
unknown slave, and Captain Tahsin Kadry.


This assessment is confirmed by extensive local testimony and petitions collected in 1919 by the USA King-Crane Commission. Contrary to President Wilson's own Zionist inclinations, the Commission's procedure and conclusions were tilted toward Christians and Arabs and strongly against Mideast pretensions of the Jews. Thus, the Commission's report stressed that, in the Holy Land, both Muslim Arabs and Arabic-speaking Christians vigorously rejected the plan to create a new country called "Palestine" which they perceived to be part of the detested Zionist project.

Ever a Muslim State called Palestine?

After the defeat of the Ottoman Empire, most local Muslim Arabs and Arabic-speaking Christians in 1919-1920 backed nationalist plans to create a very large Arab State with its capital in Damascus. They expected this new Arab country to include, at the very least, all of historic or greater Syria -- namely what is today Syria, Lebanon, Jordan, Israel, Gaza, and the West Bank (Judea and Samaria).

For Muslims in the Holy Land, this broader geographic focus of self-identification was natural, because a large province of Damascus (Ottoman-Turkish: Şam ﺸﺎﻢ) had at various times featured prominently in Muslim and Ottoman history. By contrast, the Ottoman Empire never had a province or sub-provincial unit called, or co-extensive with "Palestine," no matter how conceived. Nor had Muslim history ever known a State or a province called "Palestine."

After the Muslim conquest in the fourth decade of the 7th century CE, the Caliphate for a time kept the old Roman and Byzantine toponym Palaestina, arabicized as Filistin (فلسطين), for one district or jund (جند) of the province of Damascus. Straddling the Jordan River, this medieval Jund Filistin covered terrain that was just a part of the much larger Palestine that was:
  • previously a province of the Roman-Byzantine Empire;
  • then for centuries remembered by Christians everywhere; and
  • finally realized again in 1922 as the League of Nations Palestine Mandate.

Straddling the Jordan River, the medieval Jund Filistin
was just part of what had once been Byzantine Palestine.

Global self-determination exercise 

The Paris Peace Conference was concerned with the task of accommodating the political interests of the conquering Allied and Associated Powers with the claims to self-determination of then well-known Peoples with long histories of self-affirmation and bitter suffering under foreign oppression.

Thus, considered were difficult and entangled issues touching the self-determination of then already famous Peoples such as the Chinese, the French, the Germans, the Poles, the Finns, the Letts, the Estonians, the Lithuanians, the Czechs, the Slovaks, the Slovenes, the Croats, the Serbs, the Italians, the Hungarians, the Romanians, the Bulgarians, the Greeks, the Turks, the Kurds, the Armenians, the Arabs, and the Jews.

In this larger context, just one decision among many was creation of "a national home for the Jewish People." And, it is noteworthy that "national home for the Jewish People" was the exact phrase reiterated from 1917 to 1922, in a series of consistent declarations, resolutions and treaties that were ex post facto blessed by the 1923 Lausanne Treaty with the Turkish Republic, as successor to the Ottoman Empire.

Lawrence of Arabia fought for the great Arab People
but also supported the plans for
"a national home for the Jewish People."

Why a national home for the Jewish People?

The explicit purpose was to implement the 1917 Balfour Declaration which "always meant an eventual Jewish State." This authoritative assessment was specified in July 1921 by then Prime Minister David Lloyd George and former Foreign Secretary Arthur Balfour to Colonial Secretary Winston Churchill. This view was later confirmed by Lloyd George in his testimony before the 1937 Peel Commission:
The idea was, and this was the interpretation put upon it at the time, that a Jewish State was not to be set up immediately by the Peace Treaty without reference to the wishes of the majority of the inhabitants. On the other hand, it was contemplated that when the time arrived for according representative institutions to Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a national home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth.
Before the First World War, "Palestine" had literally been a non-existent, remembered country of uncertain extent. But, due to the peace settlement, the territory came to be officially described by the League of Nations (1922) as "the Palestine Mandate." This was an entirely new British jurisdiction then expected to last for a very long time. In addition to direct British rule in Western Palestine (earmarked as venue for "a national home for the Jewish People"), the Mandate also included Transjordan (Eastern Palestine). There, in 1921, the British acknowledged the presence of the Hashemite Prince Abdullah ibn Hussein, who was Prince Feisal's older brother.


1922 Palestine was a new British jurisdiction that included
both Transjordan (Eastern Palestine) and
"a national home for the Jewish People" (Western Palestine).
 
The "national home for the Jewish People" was launched by the Palestine Mandate of the League of Nations. This international instrument specifically referred to "putting into effect" the Balfour Declaration as endorsed by agreement of the Principal Allied Powers at the San Remo Conference, April 1920. Drafted by the UK government, the Palestine Mandate was unanimously adopted by the League Council (July 24, 1922), then consisting of Belgium, Brazil, China, France, Great Britain, Italy, Japan and Spain.

The Palestine Mandate was duly enacted under clear authority to define Mandate terms, specifically conferred on the League Council by the 1919 Covenant of the League of Nations. It was therefore legally binding at the very least on all the countries that were members of the League of Nations. The Palestine Mandate was thus akin to a multilateral treaty that created international obligations and rights, as confirmed by the interwar Permanent Court of International Justice. The precise juridical point was emphasized by lawyer Lloyd George who as Liberal Party Leader and Father of the House reminded the Commons (November 17, 1930) that the Palestine Mandate is "an international document. It is a treaty which has been signed." The instrument's principal beneficiary was the Jewish People. According to the 21st-century International Court of Justice, the Covenant of the League of Nations and the Palestine Mandate still have important legal effects today.

The Palestine Mandate importantly also became a bilateral agreement, because verbatim repeated as the text of the 1924 Anglo-American Treaty, which was ratified by the USA Senate. Thus, the USA most solemnly "consented" to all the terms of the Palestine Mandate. This was needed because the USA had never been at war with the Ottoman Empire, did not attend the San Remo Conference, and was not a member of the League of Nations. Summarizing USA obligations for the Secretary of State, the Director for Near Eastern and African Affairs, the famously anti-Zionist Loy W. Henderson, nonetheless had to report (July 7, 1947) the then well-known truth:
This Government has taken the position that the Mandate for Palestine, which incorporates the substance of the Balfour Declaration, is recognized by us as an international commitment.
The regime of the Palestine Mandate was unique (sui generis) in terms and purpose. Supervising the conduct of the UK as the authorized mandatory Power, the Permanent Mandates Commission of the League of Nations repeatedly refused to use generalizations about the postwar Mandates abstractly conceived as a system, if such systemic deductions were inconsistent with the specific terms of the Palestine Mandate. By contrast, opponents of the national home for the Jewish People have (into the 21st century) tried to evade the Palestine Mandate's detailed stipulations. These, they have sought to ignore, reinterpret or invalidate, including with reference to flawed understandings of general provisions in the Covenant of the League of Nations.

Well informed about the Holy Land, the 1917-1922 decision-makers knew the territory there to be relatively under-developed and under-populated. They also understood that the national home for the Jewish People would initially lack a Jewish majority population. Then, there was a conscious choice to refer not just to the small number of Jews living locally, but also to the past, present and future of the great Jewish People of world history. Thus, the national home for the Jewish People was then seen as also pertaining to the twelve million Jews worldwide, including the one million then living in the Mideast.

Alexandria Jewish Quarter in 1898,
when there were about one million Jews living in the Mideast.

Moreover, the multilateral decision to create a national home for the Jewish People was principally made because of "the historical connection of the Jewish People with Palestine." Exactly this rationale was indicated in the preamble to the Palestine Mandate. This was clear recognition of the great Jewish People's long-affirmed and continuous links to its aboriginal homeland. In this vein, Foreign Secretary Arthur Balfour wrote to Prime Minister David Lloyd George on February 19, 1919:
If the present [mostly Arab] inhabitants were consulted they would unquestionably give an anti-Jewish verdict. Our justification for our policy is that we regard Palestine as being absolutely exceptional; that we consider the question of the Jews outside Palestine as one of world importance; and that we conceive the Jews to have an historic claim to a home in their ancient land, provided that home can be given them without dispossessing or oppressing the present inhabitants.
Furthermore, in a wide-ranging Mideast memorandum of August 11, 1919, Foreign Secretary Balfour reiterated his key point that local Arabs had no right to block Jewish entry and settlement:
The four Great Powers [UK, USA, France and Italy] are committed to Zionism. And Zionism, be it right or wrong, good or bad, is rooted in age-long traditions, in present needs, in future hopes, of far profounder import than the desires and prejudices of the 700,000 Arabs who now inhabit that ancient land. In my opinion that is right.
Accordingly, the Palestine Mandate contained detailed stipulations requiring development of the national home for the Jewish People. Included were provisions calling for facilitated Jewish immigration and "close settlement by Jews on the land," from the Mediterranean Sea to the Jordan River (Western Palestine). Thus, this part of the global arrangements, after the First World War, forthrightly focused on millennial Jewish rights of entry and settlement.


Equity: did Arabs deserve all the Mideast?

After the First World War, failure to create a national home for the Jewish People in Western Palestine would have meant giving the great Arab People almost the whole of the Mideast inheritance; while denying the great Jewish People any share in the partition of the multi-national Ottoman Empire, where Jews had lived for centuries, including in the Holy Land.

Without doubt such an unfair result would have been unacceptable to David Lloyd George, Woodrow Wilson and their peers. Remarkably, they broke with centuries of antisemitism by then refusing to discriminate against the Jewish People. Within the global context of a worldwide peace settlement, they equitably perceived the claim to national self-determination of the great Jewish People to be as compelling as that of the great Arab People.

Those decision-makers strongly insisted that they had also done justice to the claims of the great Arab People which they believed they had freed from four hundred years of Turkish rule and helped on the road to independence via creation or recognition of several new Arab States on lands that had formerly been subject to the Ottoman sultan. For example, 77 percent of the territory of the Palestine Mandate was Transjordan (Eastern Palestine) which became an independent Arab State in June 1946.

From a global and Mideast optic, exactly these issues of "justice and equity" were clearly laid out in Einstein's June 1947 letter to Nehru:
At the close of World War I, 99% of the vast, underpopulated territories liberated from the Turks by the Allies were set aside for the national aspirations of the Arabs. Five independent Arab states have since been established in these territories. Only 1% was reserved for the Jewish people in the land of their origin. The decision which led to the proclamation of the Balfour Declaration was not arbitrary, nor the choice of territory capricious. It took into account the needs and aspirations of both Arab and Jew; and certainly, the lion's share did not fall to the Jews. In the august scale of justice, which weighs need against need, there is no doubt as to whose is more heavy. The "small notch" in the land of their fathers, granted the Jewish people, somewhat redresses the balance.

Born in Germany, Albert Einstein (1879-1955) believed in Jewish peoplehood,
saw the Jews as an historically-victimized population,
felt the link between the Jewish People and its ancestral homeland,
and argued that Jews have a moral right to migrate to Palestine
in order to build their national home there.

1938-1939: Jewish refugee crisis

The world was already awash with Jews fleeing Germany and Austria, an international tragedy that prompted the fruitless Evian Conference of July 1938. In October 1938, the Jew-persecuting Nazis moved on into parts of Czechoslovakia. Subsequently, the situation for Jews got even worse due to the State-sponsored terrorism that was the November 1938 Kristallnacht pogrom across Germany, Austria and the formerly Czech Sudetenland. Then, the Nazis were doing their best to grab Jewish real and personal property and transform Jews into impoverished refugees. Every nook and cranny from Shanghai to the Dominican Republic was then frantically tested as hundreds of thousands of Jews desperately sought shelter from persecution. A week after the Nazis took Prague, Einstein made a USA radio broadcast for the United Jewish Appeal (March 22, 1939):
The history of the persecutions which the Jewish people have had to suffer is almost inconceivably long. Yet the war that is being waged against us in Central Europe today falls into a special category of its own... The aim is to exterminate not only ourselves but to destroy, together with us, that spirit expressed in the Bible... Many Jewish communities have been uprooted in the wake of the present upheaval in Europe. Hundreds of thousands of men, women, and children have been driven from their homes and made to wander in despair over the highways of the world. The tragedy of the Jewish people today is a tragedy which reflects a challenge to the fundamental structure of modern civilization.

King George VI negative to Jewish rights

With respect to Jews and the "national home for the Jewish People" in Western Palestine, the troubling story of King George VI is worth telling because it accurately reflects the general tenor of official British attitudes during his reign (1936-1952). Morally pertinent is the key circumstance that George VI was then King-Emperor over about one quarter of the globe's land surface, notably including many sparsely-populated territories -- for example, Palestine both east and west of the Jordan River. But, during the 1930s, the King had little or no sympathy either for the national hopes of the Jewish People or for the plight of Jewish refugees fleeing Nazi persecution.

In February 1939 King George VI had his private secretary
contact the Foreign Office to tell Hitler's government
"to check the unauthorised emigration" of Jews.


National home for the Jewish People: Like his immediate predecessors, King George VI believed that the sovereign had special responsibilities with respect to foreign relations. Thus, Buckingham Palace typically hosted (October 22, 1937) Sir Miles Lampson, the British High Commissioner and Ambassador to Egypt. Then disparaging UK treaty commitments pertaining to the Jewish People, the King all too breezily volunteered:
Old Balfour was a silly old man; and had given (or promised to others) something already belonging to someone else!
That 1937 sentiment foreshadowed the way George VI sought to exercise his perceived role in foreign affairs in late July 1945. Then, the King successfully dissuaded incoming Labour Party Prime Minister Clement Attlee from proposing the appointment as Foreign Secretary of Hugh Dalton who had publicly championed the moral right of Jews to migrate to Palestine. Dalton's strong Zionist stand dovetailed with the Labour Party's Palestine position for the July 5, 1945 general election. But, the King confided to Attlee a marked royal preference for Ernest Bevin as Foreign Secretary. Thus, Dalton became Chancellor of the Exchequer and Bevin got the Foreign Office. There, Bevin showed himself (as indicated below) to be exceptionally cold to the plight of Holocaust survivors and other Jewish refugees. Bevin was also a surprisingly energetic and dogged opponent of Jewish migration to Western Palestine. Long after Bevin's disdain for both Jews and Zionism became clear, he was still the Labour Party Cabinet Minister that the King liked best.

Jewish refugees: In late February 1939, King George heard from Chief of the Imperial General Staff Lord Gort that "a number of Jewish refugees from different countries were surreptitiously getting into Palestine." What did the King then choose to do? He did not turn to the First Lord of the Admiralty and to the Colonial Secretary to urge increased vigilance at sea and at overland entry points into Western Palestine. Rather, George VI was all the more blameworthy in asking his Private Secretary Alexander Hardinge to contact the King's close friend Lord Halifax who was then Foreign Secretary. Perhaps this explains why on March 2, 1939 the Foreign Office telegraphed the British Embassy in Berlin:
There is a large, irregular movement from Germany of Jewish refugees who, as a rule, set out without visas or any arrangements for their reception, and they attempt to land in any territory that seems to present the slightest possibility of receiving them. This is a cause of great embarrassment to His Majesty's Government.
Accordingly, British Ambassador Sir Nevile Henderson (March 3, 1939) personally carried to the German Foreign Office a memorandum expressing Great Britain's desire that the Nazis check unauthorized emigration of Jews from the Third Reich.

By the time that George VI took his reprehensible initiative, he knew that British representatives in several East European countries had already started asking local governments and shipping agencies to help stop the flow of Jewish refugees. Moreover, the British secret intelligence service MI6 was then tracking the movement of Jewish refugees and working actively in several countries to impede their attempts to escape from Europe. With an astonishing lack of moral sense and compassion, King George was "glad to think that steps are being taken to prevent these people leaving their country of origin."

The King's words about Lord Balfour and Jewish refugees ironically constitute testimony proving that George VI actually believed: firstly, that the UK had indeed promised Western Palestine to the Jewish People; and secondly, that there really was a logical connection between those two arguably separate topics of "Palestine" on the one hand and "Jewish refugees fleeing Germany" on the other.

It is seldom appreciated that the Nazis did not finally prohibit Jewish emigration from the Reich and from the German-occupied territories until the second half of 1941. Before that time, many more Jews would probably have escaped from Europe but for the fact that they really had nowhere else to go. Himself a Jewish refugee from Hitler's Germany, Einstein explained to Nehru in June 1947:
Millions of Jews perished not only because they were caught in the Nazi murder machine but also because there was no spot on the globe where they could find sanctuary.
In this regard, King George VI and his government were particularly culpable, because -- all things considered -- they then played the most prominent part internationally in blocking the departure of Jewish refugees from Europe.


Jewish rights erased by 1939 UK White Paper?

Released on May 17, 1939 was Palestine: Statement of Policy. This White Paper was sponsored by 37-year old Colonial Secretary Malcolm MacDonald. He was son of Prime Minister James Ramsay MacDonald who had left office in June 1935. Rising quickly after 1929 when he was initially pro-Zionist, Malcolm MacDonald from 1938 irreparably damaged his political career by: (i) supporting appeasement of Ireland, Germany, and the Arab countries; and (ii) championing rights of self-determination for the ethnic Germans of the Sudetenland, the Arabs of Western Palestine, and the Roman Catholics of Northern Ireland. On January 18, 1939, Malcolm MacDonald informed Cabinet:
We cannot accept the contention that all Jews as such have a right to enter Palestine... It would clearly be absurd to admit that all the millions of Jews in the world have a right, which they should be allowed to exert if they wished, to settle in Palestine.
The crux of the White Paper was a new commitment that "after ... five years, no further Jewish immigration will be permitted unless the Arabs of Palestine are prepared to acquiesce in it." Also promised was "establishment within ten years of an independent Palestine State." This radically new direction was driven by the 1936-1939 revolt of the Arabs of Western Palestine and also by sense of impending war with Germany.

In addition, the White Paper was significantly a product of enduring British belief in Pan-Arab nationalism. This was a 20th-century ideology that the British had themselves sponsored during the First World War as propaganda to help defeat the Ottoman Turks. But more often than not, the British themselves genuinely believed in the existence and rights of the great Arab People of world history. This particular UK perspective partly explains why the White Paper was discreetly negotiated, not with the leaders of the Arab rebellion in Western Palestine, but rather with the neighboring Arab countries, i.e. with the British protégé Prince Abdullah of Transjordan (Eastern Palestine) and the newly independent Arab States of Iraq, Egypt and Saudi Arabia.

Some members of the Permanent Mandates Commission thought those Arab governments had no right to interfere in Western Palestine. Nonetheless, the UK Cabinet was by April 1939 hellbent to make a deal with "the Arabs" writ large. Specifically, the British hoped that appeasing the Arab States with regard to Western Palestine might be an effective way: firstly, to win the support of the Muslim world if war came with Germany; and secondly, to get the Arabs of Western Palestine to end their rebellion. To the point, on April 11, 1939, the British Ambassador in Cairo had reported that the Egyptian "Prime Minister said that tranquility could be restored at once in Palestine if [Jewish] immigration were stopped forthwith for a definite period."

The resulting formula was immediately understood as signaling an early end to Jewish migration to Western Palestine -- leaving local Jews a permanent minority, always at the mercy of an intolerant Arab majority. Thus, longtime Zionist leader Chaim Weizmann saw this new British policy as "a death sentence for the Jewish People." On April 18, 1939, UK Prime Minister Neville Chamberlain received Weizmann's warning:
The proposed liquidation of the mandate and the establishment of an independent Palestine state, coupled with reduction of the Jewish population to one-third of the total and with restriction of the area of Jewish settlement to a small sector of the country, are viewed as destruction of Jewish hopes and surrender of the Jewish community of Palestine to the rule of the Arab junta responsible for the [1936-1939] terrorist campaign. Adoption of these proposals is regarded as tantamount to the establishment of a Jewish ghetto in a small corner of the country. Jews are determined to make the supreme sacrifice rather than to submit to such a regime.
During the May 23, 1939 debate in the House of Commons, Conservative Party backbencher Winston Churchill sided with the opposition parties. He vigorously rejected the White Paper which he tarred as another instance of appeasement:
What will our potential enemies think? What will those [Hitler, Mussolini] who have been stirring up these Arab agitators think? Will they not be encouraged by our confession of recoil? Will they not be tempted to say: "They're on the run again. This is another Munich," and be the more stimulated in their aggression?
Furthermore, Churchill emphasized that the UK had made a solemn promise to world Jewry -- namely, to the Jewish People globally -- that Jews would be able to settle in Western Palestine. He said the UK as Mandatory Power was entitled to regulate entry but had no right to permanently terminate Jewish immigration:
What sort of National Home is offered to the Jews of the world when we are asked to declare that in five years' time the door of that home is to be shut and barred in their faces? [...] After that the Arab majority, twice as numerous as the Jews, will have control, and all further Jewish immigration will be subject to their acquiescence, which is only another way of saying that it will be on sufferance. What is that but the destruction of the Balfour Declaration? What is that but a breach of faith? What is it but a one-sided denunciation of an engagement? What is called in the [Nazi] jargon of the present time a "unilateral denunciation."
By contrast, Chamberlain thought looming war with Germany urgently argued for favoring Arabs both locally and generally in order to win the support of Muslims everywhere, including in British India. Chamberlain had already confided this motive to Cabinet on April 20, 1939:
We are now compelled to consider the Palestine problem mainly from the point of view of its effects on the international situation. It is of immense importance, as Lord Chatfield [Minister for Defence Coordination] has pointed out, to have the Moslem world with us. If we must offend one side, let us offend the Jews rather than the Arabs.
This was clear calculation of perceived national interest, but also a choice perhaps facilitated by some degree of prejudice. To the point, on July 30, 1939, Chamberlain wrote to his sister Hilda: "No doubt the Jews aren't a lovable people; I don't care about them myself..."


1939: a Jewish right to migrate to Palestine!

Then a relatively obscure United States Senator from Missouri, Harry Truman caused to be inserted (May 25, 1939) in the Congressional Record a contemporary Washington Post article by Barnet Nover tarring the White Paper as additional Chamberlain appeasement after the fashion of the September 1938 Munich Agreement with Hitler and Mussolini. In the Congressional Record, Senator Truman himself characterized the White Paper as still one more item to be added "to the long list of surrenders to the Axis powers." A portent of things to come was Truman's own view that the British government "has made a scrap of paper out of Lord Balfour's promise to the Jews."

In mid-June 1939, Malcolm MacDonald traveled to Geneva for four days of extraordinary effort to sell the White Paper to the Permanent Mandates Commission. Clever, confident, energetic, thorough and persistent, the young Colonial Secretary skillfully deployed all sorts of moral, legal and political arguments to sink the cause of the Jewish People. But despite his smooth talk and sheer inventiveness, the Commission did not buy this Mideast version of Chamberlain appeasement. Why? The Commission was:
  • rich in experience of Mandates generally, and of the Palestine Mandate in particular;
  • an independent entity with its own expert grasp of facts, policy and law;
  • in receipt of high-quality, adversarial legal analysis by the Jewish Agency that was officially recognized as "a public body" in the text of the Palestine Mandate;
  • familiar with the serious objections raised during fiery debate in Parliament; and
  • sensitive to the humanitarian issues posed by the ongoing Jewish refugee crisis.
In this light, the Commission spectacularly refused to give the White Paper the legitimacy that the UK government so urgently craved. On June 29, 1939, the Commission unanimously concluded:
The policy set out in the White Paper was not in accordance with the interpretation which, in agreement with the mandatory Power and the Council, the Commission had always placed upon the Palestine mandate.
Furthermore, the Commission majority would not concede that consistent with the Mandate's explicit terms (and its authors' intentions) could be the White Paper proposals likely to lead to early termination of Jewish rights of entry and settlement.

That authoritative finding corroborated Weizmann's accusation that (May 13, 1939): "Mr. MacDonald was covering up his betrayal of the Jews under a semblance of legality." Years later, Malcolm MacDonald himself still preferred to equivocate: "There was an element of modifying the Mandate -- I won't say breaking the Mandate." But, that late attempt at self-exculpation ignored the clear contemporary verdict of both Churchill and the Permanent Mandates Commission.


USA Supreme Court Justice Louis Brandeis
believed Jews had a legal right to migrate to Western Palestine
by virtue of the terms of the League of Nations Mandate.

Concurring was the legal assessment of famed USA jurist Louis Brandeis. He repeatedly discussed Jewish migration to Western Palestine with President Franklin Roosevelt from March to May 1939. Less than six months after retiring from the Supreme Court, Brandeis shared (July 31, 1939) with some fellow Zionists his shrewd prediction that Jews would continue going to Western Palestine despite the White Paper. Asked if such Jewish migration would be "illegal," Brandeis replied:
The Jewish People consider it legal in view of the fact that any attempt to curtail immigration is in violation of the terms of the Mandate; it may be considered illegal by Great Britain but we Jews consider it to be legal.
Brandeis' juridical view of Jewish rights of entry and settlement was endorsed by foreign delegates and a broad spectrum of USA groups at an Extraordinary Zionist Conference held at New York's Biltmore Hotel (May 6-11, 1942):
The Conference affirms its unalterable rejection of the White Paper of May 1939 and denies its moral or legal validity. The White Paper seeks to limit, and in fact to nullify Jewish rights to immigration and settlement in Palestine... The policy of the White Paper is cruel and indefensible in its denial of sanctuary to Jews fleeing from Nazi persecution.

Jews not "a People" = Jewish life devalued

As an integral part of Chamberlain appeasement, official Britain suddenly broke with a strong English perception of the Jews as a People in history. This was a firm understanding that had reached back at least as far as the 8th-century CE writings of the Venerable Bede. But, for about ten years starting in 1938-1939, UK officialdom pretended that they now saw Jews primarily in terms of their passports as Germans, Poles, Russians, Romanians, etc. In some contemporary Cabinet papers, Jews are no longer dignified as "a People" but rather denigrated as "an element" contrasting with the majority in a host country.

During the Second World War (1939-1945), good faith was mostly lacking in the Foreign Office's unctuous plea that Jews were to be classified by their several countries of citizenship, as opposed to Nazism which persecuted them as a "race." Then, the word race still retained some ambiguity that readily supported confusion between "a People" understood in the main culturally, versus purely genetically. Thus, the objective fact of Hitler's genocidal antisemitism could, in more ways than one, be slyly exploited to advance British officialdom's single-minded campaign to bury the rights of the Jewish People.

For example, Nazi and companion persecutions created a stream of Jewish refugees. But, British ministers and officials knew how to do Jews still further harm by spinning as a no-name "refugee" crisis what they themselves (1938-1943) still perceived to be mostly Jews trying to flee Hitler's Europe. This public-relations rebranding occurred notably after the 1942 Allied triumphs at Midway, El Alamein, and Stalingrad. Thus, from the end of 1942, the Allies felt great relief that ultimate victory would be theirs. But, it was precisely at this time of renewed confidence that British work began to take the Jew out of the notion of "Jewish refugees."

For example, the UK War Cabinet Committee on the Reception and Accommodation of Jewish Refugees dropped "Jewish" from its title on December 31, 1942. With an eye to his responsibilities for Mandate Palestine, Colonial Secretary Oliver Stanley then shrewdly "suggested that we could not differentiate as between Jewish and non-Jewish refugees and the refugee problem should be dealt with as a whole." This new no-name policy was also advocated by Home Secretary Herbert Morrison who offered the justification: "There was a considerable amount of antisemitism under the surface in this country." The need for a no-name approach and the danger of stimulating further antisemitism were soon themes exported to the USA State Department via the British Embassy in Washington (January 20, 1943):
The refugee problem cannot be treated as though it were a wholly Jewish problem which could be handled by Jewish agencies or by machinery only adapted for assisting Jews. There are so many non-Jewish refugees and there is so much acute suffering among non-Jews in Allied countries that Allied criticism would probably result if any marked preference were shown in removing Jews from territories in enemy occupation. There is also the distinct danger of stimulating antisemitism in areas where an excessive number of foreign Jews are introduced.
Ostensibly non-discriminatory, this "no name" rhetoric was mostly a self-serving UK government tactic for distancing the question of Jewish entry to Western Palestine from the contingency that there might perhaps still be hundreds of thousands of Jewish refugees escaping from Hitler's Europe. For these and other reasons, British public servants were usually careful to conceal a great mass of detailed information about the ongoing Holocaust which they were generally reluctant to portray as systemic extermination of Jews in particular.

The British government persistently encouraged USA government commitment to the no-name euphemism "refugees" and to the idea that surviving Jews should postwar go, not to Western Palestine, but rather back to Poland and the other European countries of their citizenship. These were the principal British goals for the April 1943 Anglo-American Conference called for no other reason than to quell growing public pressure provoked by news of the Holocaust. The conference was sited in Hamilton, Bermuda, exactly because the island colony was so distant from USA and UK champions of the Jews. Afterwards, the full War Cabinet highlighted rejection of Jewish peoplehood in its review of the Bermuda success (May 10, 1943):
There were signs of increasing antisemitic feeling in this country. From this point of view it would be preferable in public statements to avoid implying that refugees were necessarily Jewish and to refer to refugees by nationality rather than by race.
The unspoken aim was perpetuating the 1939 White Paper that virtually guaranteed early end to Jewish migration to Western Palestine. Thus, the War Cabinet was informed:
The [Bermuda] intention was that all Allied Governments should undertake to facilitate the return after the war of refugees [read "Jews"] originating from their territories. As regards enemy territories, we could only do our best to ensure that conditions were created in those territories which would enable refugees [read "Jews"] to return to them.
From 1938, the increasingly horrific treatment of Jews by the Nazi regime correspondingly gave additional moral weight to pleas that Western Palestine ought to be their place of refuge. But, British ministers and public servants generally stifled any pangs of conscience with mostly contrived excuses and juridically shallow ex parte contentions that Jews as such had no moral or legal right to go to Western Palestine.

However, the deeper political truth was that the reality or prospect of many hundreds of thousands of Jewish refugees was a daunting challenge Whitehall was hellbent to avoid. To the point, damning wartime evidence shows that ongoing Axis liquidation of Jews was seen as politically convenient by some British ministers and officials. The minimum indictment is that British officialdom was way too comfortable relying on continuing Nazi genocide as an existing, objective factor fortifying the blatantly anti-Jewish policy in the May 1939 White Paper.

In the War Cabinet Committee on the Reception and Accommodation of Refugees, Deputy Prime Minister Clement Attlee and Foreign Secretary Anthony Eden, along with Secretaries Morrison and Stanley, recommended refraining from overly ambitious rescue measures that might invite Axis States to drive Jews out as penniless refugees (extrusion), instead of simply killing them in Eastern Europe (extermination). This heinous calculation slipped out in their short comment on a stillborn plan to transfer some Jewish school children from Bulgaria via Turkey to Western Palestine (January 7, 1943):
There was reason to believe that it was the policy of certain Axis countries, notably Roumania, to extrude Jews from their territories as an alternative to the policy of extermination. This made it all the more necessary that the policy of His Majesty's Government to accept into Palestine only a limited number of Jewish children (with a small number of accompanying women from Eastern Europe) should be firmly adhered to.
Was this repugnant logic characteristic? Unfortunately, yes! For example, the British Embassy in Washington sent to the State Department an aide-mémoire on "refugees from Nazi-occupied territory." Highlighting some "complicating factors," the British warned their American counterparts (January 20, 1943):
There is a possibility that the Germans or their satellites may change over from the policy of extermination to one of extrusion, and aim as they did before the war at embarrassing other countries by flooding them with alien immigrants [read "Jews"].
This reprehensible logic also featured in Eden's sly plea personally to President Roosevelt to avoid "too expansive promises" to rescue Jews. According to the White House notes taken by Special Presidential Assistant, Harry L. Hopkins (March 27, 1943):
[USA Secretary of State Cordell] Hull raised the question of the sixty or seventy thousand Jews that are in Bulgaria and are threatened with extermination unless we could get them out and, very urgently, pressed Eden for an answer to the problem. Eden replied that the whole problem of the Jews in Europe is very difficult and that we should move very cautiously about offering to take all Jews out of a country like Bulgaria. If we do that, then the Jews of the world will be wanting us to make similar offers in Poland and Germany. Hitler might well take us up on any such offer and there simply are not enough ships and means of transportation in the world to handle them.

UK Foreign Secretary Anthony Eden who wrote (1941):
"If we must have preferences, let me murmur in your ear
that I prefer Arabs to Jews."


Eden's skillful anti-Jewish arguments echoed at the Bermuda Conference where UK Undersecretary of State for Foreign Affairs, Richard K. Law (April 20, 1943) derided the idea of bargaining with Nazis to rescue millions of Jews. Like Eden, Law said there was always the danger that Hitler might actually take up the offer in order to shift the moral and material burden to the Allies. And just like Eden, Law warned that Nazi spies were sure to be inserted within any mass release of Jewish refugees. Finally, either Law or another on the UK delegation added that negotiating to rescue Jews "would be relieving Hitler of an obligation to take care of these useless people."

The same UK government fear of being swamped with unwanted Jews emerged again in May 1944, when the Gestapo made a stillborn offer to trade a million Jews for 10,000 trucks and large amounts of coffee, tea, cocoa and soap. In the War Cabinet Committee on the Reception and Accommodation of Refugees, the resulting ministerial talk was heartlessly bureaucratic in referring to the need to keep Jews within the strict Palestine-entry quota in the 1939 White Paper. And once again, the apprehension was about having to rescue too many Jews (May 31, 1944):
There seemed to be some danger that an indication that we might negotiate through a Protecting Power [Sweden] with the German Government might be followed up, and lead to an offer to unload an even greater number of Jews on to our hands.
Moreover, tightly holding the keys to Western Palestine, British officialdom was generally quick to say, "there is no destination available for the Jews in question." This was, for example, the geographic word in a memorandum (December 3, 1943) by Richard Law, recently promoted to Minister of State for Foreign Affairs. His remark about no place for so many Jewish refugees to go was naturally just one part of his boilerplate as to why it was impossible to rescue the 70,000 Jews said to still survive from the much greater number that Romania had brutally transported to Transnistria.

But, Ben Gurion in the summer of 1941 had already shared with Colonial Secretary Lord Moyne details of the Jewish Agency's plan to bring several million Jewish refugees to Western Palestine, which was described as not yet heavily populated. Precisely this demographic point was later confirmed by former Liberal Party Leader, Viscount Herbert Samuel who had been High Commissioner for Palestine from 1920 to 1925. On December 23, 1942, Lord Samuel told Eden that Jewish refugees should immediately be admitted to Western Palestine, which Samuel said could accommodate at least three million people.

Despite such Jewish hopes for entry and settlement, the War Cabinet Committee on the Reception and Accommodation of Refugees judged (January 27, 1943): "It was essential to kill the idea that mass migration to this country and the British Colonies was possible." Eden arrived at that meeting already knowing a fair bit about the ongoing Holocaust. But, to his Principal Private Secretary Oliver Harvey, Eden had earlier revealed what was probably in his heart (1941): "If we must have preferences, let me murmur in your ear that I prefer Arabs to Jews." In his wartime diary, Sir Oliver Harvey deplored:
[1942] the blind pro-Arabism of the Foreign Office which Anthony Eden has never resisted. Indeed he is a blind pro-Arab himself... I have often talked to Anthony Eden about this but he is hopelessly prejudiced. The Arab myth clouds his mind.
[1943] Unfortunately, Anthony Eden is immovable on the subject of Palestine. He loves Arabs and hates Jews.
For sure, Eden was a great snob when it came to Jews, but still mostly suave. Thus, even in the secrecy of the Cabinet Committee, he knew how to sink Jewish hopes for peoplehood and homeland diplomatically (January 27, 1943): "The solution of the Jewish problem in Europe after the war lay in making Europe fit for Jews and not by large scale transference."

Postwar, part of Attlee's Labour government, the Cabinet Committee on Refugees was dismayed that, by contrast to practice in the British Zone of Occupation in Germany (October 3, 1945):
ninety percent of the Jews in camps in the American Zone were being treated as a separate national group, and were thus being encouraged to press to be taken out of Europe and to demand to be allowed to go to Palestine.
At that same meeting, Colonial Secretary George Henry Hall complained about "the unwillingness of the Americans to accept our view that the Jews were not a separate national grouping and should not be regarded as ultimately non-repatriable to their countries of origin." Moreover, speaking for the Foreign Office, the influential anti-Zionist Sir George Rendel:
rejected the assumption that Jews should not be expected ever to return to Germany because of the ill-treatment they had received there. [...] If they were to be regarded as an unassimilable element for which there was no place in Europe we should to some extent at least be playing the Nazi game.
After the Second World War, British ministers and officials were surprisingly slow to grasp the growing moral, political and practical barriers to their plan to return Holocaust survivors and other Jewish refugees to their European countries of citizenship. As described below, postwar British policy on Jewish refugees was a stunning failure that ran headlong into a brick wall constituted by: (i) steady White House pressure to allow such Jews to go to Western Palestine; and (ii) the defeat of Britain's Arab protégés in Israel's war of independence.


Rights of entry and settlement post WW2

After the Second World War, there were several hundred thousand Holocaust survivors and other Jewish refugees, many of whom were tragically trapped in postwar European camps for displaced persons. As early as the July 1945 Potsdam Conference, USA President Harry Truman told the newly elected UK Prime Minister Clement Attlee:
The American people, as a whole, firmly believe that immigration into Palestine should not be closed and that a reasonable number of Europe's persecuted Jews should, in accordance with their wishes, be permitted to resettle there.
The right of Jews to migrate to Western Palestine quickly became an explosive moral, legal and political issue that troubled the conscience of the Western world. Because bitter controversy over Jewish entry sparked real discord between the White House and Downing Street, created was an Anglo-American Committee of Inquiry Regarding the Problems of European Jewry and Palestine. In Washington, the Committee heard testimony from Albert Einstein (January 11, 1946):
There is great difficulty with the refugees. Of course, there should be something done about them. I believe it is natural to bring the bulk of them to Palestine. In Palestine the Jews who are already there will take care of the ones that are brought in. I believe that such kind of action should not be taken from a political standpoint but from a human standpoint. It would be best for the [Jewish] population of Palestine to feed those people and take care of them. I believe it is quite natural that they can take into their homes people who have no place to stay.
Releasing the Committee's report on April 30, 1946, President Truman specifically supported recommendations for immediate admission of 100,000 Jewish refugees and for abandonment of the 1939 UK White Paper's core principle that further Jewish entry would depend upon approval by the Arabs of Western Palestine:
I am also pleased that the Committee recommends in effect the abrogation of the White Paper of 1939 including existing restrictions on immigration and land acquisition to permit the further development of the Jewish National Home.
Despite this clear message from Truman, Attlee stubbornly refused to implement the Committee's humanitarian recommendations. On October 10, 1946, Truman forthrightly reminded Attlee that it had been more than a year since Truman had first called for immediate admission of 100,000 Jewish refugees. To this humanitarian plea, the President now added legal argument:
In our view the development of the Jewish National Home has no meaning in the absence of Jewish immigration and settlement on the land as contemplated in the Mandate. We therefore feel that the implementation of the Mandate, as well as the humanitarian considerations mentioned above, call for immediate and substantial immigration into Palestine.
Few anticipated that White House and Kremlin could ever align on the right of Jews to migrate to Western Palestine. So, astonishment was great when on May 14, 1947 Soviet Permanent Representative to the United Nations, Andrei Gromyko suddenly revealed to the United Nations Special Committee on Palestine (UNSCOP) Moscow's support for ending the British Mandate and adopting recommendations for some new political solution that would facilitate Jewish entry and settlement:
The aspirations of a considerable part of the Jewish people are linked with the problem of Palestine... During the last war, the Jewish people underwent exceptional sorrow and suffering... The Jews in territories where the Hitlerites held sway were subjected to almost complete physical annihilation. The total number of members of the Jewish population who perished at the hands of the Nazi executioners is estimated at approximately six million. Only about a million and a half Jews in Western Europe survived the war... Large numbers of the surviving Jews of Europe were deprived of their countries, their homes and their means of existence. Hundreds of thousands of Jews are wandering about in various countries of Europe in search of means of existence and in search of shelter. A large number of them are in camps for displaced persons and are still continuing to undergo great privations... The time has come to help these people, not by word, but by deeds...
Representative of a stubborn contrary view -- and also of the UK's growing diplomatic isolation -- was a letter to USA Secretary of State George C. Marshall from British Foreign Secretary Bevin (June 27, 1947). This registered:
grave concern at the persistent and successful attempts of Jewish organisations to send Jewish illegal immigrants to Palestine from various European countries... My colleagues and I feel very strongly that the organisers of this traffic are ... endangering the peace and security of the Middle East...
Such a powerful indictment matched ugly (and sometimes patently illegal) British enforcement to prevent Jews from entering Western Palestine. For example, in February 1947 the UK government had already asked MI6 to launch Operation Embarrass. Apart from misinformation, propaganda and dirty tricks, there was outright sabotage. For example, MI6 illicitly placed explosive devices on five foreign ships in Italian ports. Moreover, even British Admiralty lawyers were then confidentially warning the UK government that the Royal Navy was egregiously violating international maritime law by peacetime interception of foreign-flag vessels on the high seas.

Such reckless British disregard for legality only added to the cogency of moral and legal argument on the main point. Namely, preventing Jews from migrating to their own "national home" was inconsistent with the spirit and letter of the League of Nations Palestine Mandate which by 1945 design continued to apply under the regime of the United Nations Charter.

Understandably, Jews replied with clear affirmation of the Jewish People's rights of entry and settlement via persistent migration that made newspaper headlines and heightened international support. From 1945 to 1948, whether overland or by sea, more than 80,000 Jews were able to successfully enter Western Palestine in full defiance of British jurisdiction, though some other Jews came with UK authorization.


Exercising aboriginal rights of entry and settlement
in defiance of British jurisdiction,
more than 80,000 Jews entered Western Palestine,
both by land and sea, from 1945 to 1948.



UK pushed Arabs and Jews to war?

The 1917 British decision to create "a national home for the Jewish People" had not displaced local Arabs. To the contrary, "the natural rate of increase of Moslem Arabs in Palestine is the highest in recorded statistics," said UNSCOP. This September 3, 1947 report attributed the astonishing interwar Muslim demographic growth to "very high fertility rates coupled with a marked decline in death rates as a result of improved conditions of life and public health."

But, Muslim numbers were also appreciably reinforced by economic migrants from other parts of the Arab Mideast, as specifically acknowledged in 1939 by both Winston Churchill and Franklin Roosevelt. To the point, the 1937 Peel Commission had judged overland migration by Arabs into Western Palestine to be significantly undocumented and unregulated. From around 1900 to 1948, the Muslim population probably tripled, while the Jews multiplied perhaps eight times. At the end of 1946, Jews were about one third of the total population of Western Palestine.

Testifying before the Anglo-American Committee, Einstein (January 11, 1946) said that he had once been "an admirer of the British system." However, he explained that he had abandoned his "very high opinion of our British colonial world" after carefully watching sad developments in India and Western Palestine. He saw those two places as alike in having a number of different nationalities under "English rule." Pointing to internecine strife among ethnic groups, Einstein said "national trouble-making is a British enterprise" and judged that "the British have really very badly violated their obligations." Einstein deplored that "the frame of mind of the colonial people of the British is so rigid." He faulted the British (and their local Palestine Administration, in particular) for intentionally fomenting discord between Arabs and Jews as a classic divide and rule gambit.

The trauma of the Second World War had spiritually and materially exhausted the British whose fourteen years of food rationing ended only in July 1954. Their global empire spectacularly collapsed, bringing full sovereign independence (1946-1949) to Transjordan (Eastern Palestine), India, Pakistan, Sri Lanka, Burma, Ireland, and Israel (Western Palestine).

Across 1947 the UK government was struggling with implementation of its fateful decision to divide the territory of British India. This division was an attempt to accommodate Muslims who were around one fifth of the population of the Indian subcontinent. There, partition displaced around fourteen million people and caused circa two million deaths. Nonetheless, the UK eagerly championed partition for the 20 percent Muslim minority of British India, but not for the 33 percent Jewish minority of Western Palestine.

There were certainly Realpolitik justifications for the eventual British preference for Muslims and Arabs both locally and generally. But, the UK government's growing negativity toward the Jewish People (and the Jews of Western Palestine, in particular) had, in the critical short run, a heavy downside for postwar British foreign policy, (inter alia) because:
  • revulsion at the Holocaust caused many millions worldwide to believe that survivors and other Jewish refugees had a moral right to immediately migrate to Western Palestine;
  • including several million American Jews, there was strong bipartisan and popular USA support for Jewish migration to Western Palestine;
  • after Hitler's defeat, some countries were alienated by Arab leaders publicly speaking like Nazis when referring to Jews;
  • the self-proclaimed leader of the Arabs of Western Palestine, Haj Amin al-Husseini (the Grand Mufti) was odious as a notorious Nazi collaborator; 
  • as feared at the USA State Department and the UK Foreign Office, the Jews of Western Palestine really did have some ties to the Soviet Union -- a diplomatic card then unavailable to the Arabs and British;  
  • Jews generated more than two-thirds of the tax revenue, industry and trade in Western Palestine; and
  • the British Joint Intelligence Staff warned Cabinet (April 1946) that, not counting women fighters, local Jews could potentially field an 80,000 man army "well-equipped and trained" and with an "excellent system of communications and intelligence" -- by contrast, discounted was the military worth of local Arabs who had not impressed during their failed rebellion (1936-1939).
Nonetheless, the UK peculiarly rushed to grant full sovereign independence (June 1946) to the large expanse of Eastern Palestine (Transjordan). Eight months later, the UK disingenuously despaired of ever being able to succeed within the confines of that narrow strip (Western Palestine) that was all that remained of the greater Mandate. The political conundrum west of the Jordan River logically flowed from that final excision of Eastern Palestine, together with the earlier cynical rereading of the Palestine Mandate.

We have already seen that the Palestine Mandate was originally intended to be a long-term British jurisdiction for gradually developing the "national home for the Jewish People" via continuing migration and settlement by Jews throughout Western Palestine. This assessment was specifically confirmed by Churchill's secret testimony before the Peel Commission (March 12, 1937):
The conception undoubtedly was that, if the absorptive capacity over a number of years and the breeding over a number of years, all guided by the British government, gave an increasing Jewish population, that population should not in any way be restricted from reaching a majority position. [...] Certainly we committed ourselves to the idea that some day, somehow, far off in the future, subject to justice and economic convenience, there might well be a great Jewish State there, numbered by millions, far exceeding the present inhabitants of the country... 
But, specific UK treaty promises to the Jewish People and Churchill's own sympathy for Zionism were to little avail. During and after the Second World War, the UK government stubbornly adhered to its prewar tilt toward the Arabs. They, the British had argued, had an immediate right to forever remain the majority in Western Palestine.

As noted above, the die had finally been cast in May 1939, when the White Paper brazenly reinterpreted the Mandate as Western Palestine's ten-year transition toward independence as an Arab country. This UK formula set a collision course toward postwar British conflict with the Jewish People. And, exactly as Einstein alleged in 1946, such British zigzagging also sharpened rivalry between Arabs and Jews.


1947 UN proposed heavy Jewish immigration 

In February 1947, Foreign Secretary Bevin said the United Nations would be asked to recommend a solution in the light of a firm UK decision to quickly end its mandatory role. Repeated was UK unwillingness to use British troops or administration to enforce any UN proposal unless accepted by both Arabs and Jews. In this regard, an accurate Palestine Post precis captured the crux of criticism by Andrei Gromyko (November 26, 1947):
The United Kingdom has also failed morally, because she knew -- in fact, it was abundantly clear -- that one could not count on any possible agreement between the Arabs and the Jews. Britain had never shown any true desire fully to cooperate with the United Nations for a solution of the question.
With the UK and some other countries abstaining, more than two thirds of the UN Members then voting in the General Assembly supported the historic partition recommendation (November 29, 1947). Given the longstanding controversy over Jewish rights of entry and settlement, this resolution significantly incorporated an explicit provision reflecting President Truman's persistent call for early migration on a large scale:
The mandatory Power shall use its best endeavors to ensure that an area situated in the territory of the Jewish State, including a seaport and hinterland adequate to provide facilities for a substantial immigration, shall be evacuated at the earliest possible date and in any event not later than 1 February 1948.
Like the 1937 Peel and 1938 Woodhead Commissions (which had been entirely British), the 1947 UNSCOP did not believe that the Arab-inhabited parts of Western Palestine had the economic and fiscal capacity to stand alone as a viable State. Therefore, prominently included in the General Assembly resolution were far-reaching proposals for preserving Western Palestine's "economic union" with regard to freedom of travel, transportation, water conservancy, electricity, communications, economy, currency, and the customs-tariff.

However, to be able to realize the key Jewish rights of entry and settlement, the General Assembly recommended a political trisection, no later than October 1, 1948. Proposed were three separate jurisdictions for Western Palestine: (i) Jerusalem and surrounding territory; (ii) "the Jewish State"; and (iii) "the Arab State."

Nov. 29, 1947: To respect "the sentiments of Christendom"
Jerusalem and surrounding region were proposed as
a demilitarized "corpus separatum" where
executive authority would be exercised internationally.

With three references to "Christendom" and sixty to "the holy places," the UNSCOP Report deemed Jerusalem itself to be "the Holy City." This particular concept had been absent from the 1922 League of Nations Palestine Mandate, but present in the 1937 Peel Report. In 1947, the then heavily Christian membership of the UN General Assembly did not want to see rule by British Christians replaced by that of either Jews or Muslims. According to UNSCOP:
There is secured, through the constitutional position of Jerusalem and the Holy Places, the preservation of the scenes of events in which the sentiments of Christendom also center.
Accordingly, suggested was a "Special International Regime for the City of Jerusalem. The proposed corpus separatum was to be demilitarized. It would embrace not only the existing municipality where Jews were the majority, but also the immediately surrounding territory mostly inhabited by Muslim Arabs, but also including some Arabic-speaking Christians. This Christian aspect is underlined by Bethlehem's inclusion within the planned corpus separatum. At the same time, this 1947 UN resolution recommended that Jews and Arabs should still be able to take up residence in Jerusalem, which was then envisioned as one city undivided.

Finally, this complex (and unrealized) UN blueprint proposed partitioning the rest of Western Palestine between "the Jewish State" and "the Arab State." Together with the planned Jerusalem corpus separatum, these two suggested ethnic jurisdictions were supposed to be in close "economic union." But, the imagined Jewish and Arab States were each projected as having its own armed militia and full control of local laws for immigration and residence. The rationale had already been explained by UNSCOP which recognized Jewish rights of entry and settlement as the crux of the Palestine question:
Jewish immigration is the central issue in Palestine today and is the one factor, above all others, that rules out the necessary co-operation between the Arab and Jewish communities in a single State. The creation of a Jewish State under a partition scheme is the only hope of removing this issue from the arena of conflict.

Shouts of "war" sparked Mideast refugees

The first Secretary-General of the Arab League, Abdul Rahman Azzam was interviewed by the Egyptian newspaper أخبار اليوم‎‎ Akhbar al-Yom. The resulting article (October 11, 1947) anticipated the November 29th UN trisection recommendation, in relation to which Azzam explicitly promised war:
I personally wish that the Jews do not drive us to this war, as this will be a war of extermination and momentous massacre which will be spoken of like the Mongol massacre or the Crusader wars.
Trisection “would, to say the least, result in bloodshed.” This was the prediction or rather threat which Egyptian Delegate Mohammed Hussein Heykal (November 24, 1947) offered the UN Ad Hoc Committee on Palestine:
If the United Nations decides to amputate a part of Palestine in order to establish a Jewish state, no force on earth could prevent blood from flowing there. Moreover, once such bloodshed has commenced, no force on earth can confine it to the borders of Palestine itself. All the peoples of the Orient would come to the aid of their brothers in Palestine in a race war. If Arab blood is shed in Palestine, Jewish blood will necessarily be shed elsewhere in the Arab world... Would the members be acting in a humanitarian way to place in certain and serious danger a million [Mideast] Jews simply in order to save a hundred thousand in Europe or to satisfy the Zionist dream? The Egyptian delegation is giving the world fair warning.
Reacting to the November 29th adoption of the UN General Assembly resolution recommending trisection, Secretary-General Azzam's Cairo speech (December 4, 1947) vowed:
When our nation starts a fight it doesn't look forward to its conclusion. We will start and will not stop until victory is achieved and our enemy has been thrown into the sea.
The November 29th General Assembly resolution recommending trisection was quickly welcomed by Jews; but angrily rejected by Arabs both in Western Palestine and across the Mideast. Pogroms soon hit Jewish communities in several Muslim countries.

Civil unrest began immediately in Western Palestine. There, growing violence gradually became reciprocal, with Jews eventually giving back as much as they got from local Muslim Arabs and armed infiltrators from neighboring Arab countries. British exit was commonly expected to trigger full-scale war. Still, the UK government reiterated determination to withdraw its army and administration by August 1, 1948, later abbreviated to "end of day" on May 14th.

In the interim, the local Mandate administration was crumbling, with the British increasingly losing control of the territory between the Jordan River and the Mediterranean Sea. But, as internal disorder mounted, they stubbornly continued zealous international and local efforts to prevent Jews (especially those fit for military service) from reaching Western Palestine. Moreover, the British also ignored most of the other proposals set out in the General Assembly's resolution of November 29, 1947.

The UK attitude toward Western Palestine was "irresponsible," wrote Dean Rusk at the USA State Department. On January 26, 1948, Rusk opined: "British noncooperation amounts to a rejection of the Assembly resolution." Rusk's view was later corroborated by the USA Consul General at Jerusalem who on February 9, 1948 reported:
The British continue to be adamant in their refusal to assist in any shape or fashion the implementation of the partition recommendation. Their officials, generally speaking, cannot get out of Palestine too soon. The [British] Police have no sympathy for the Jews, and state freely their opinion that the latter will “collect a packet” from the Arabs once the British relinquish the mandate. Many Police add that in their opinion the Jews have “asked for it.”
Thorough discussion by lawyers and diplomats convinced the USA State Department that: (i) the United Nations had not inherited the powers and responsibilities of the League Council with respect to the Palestine Mandate; (ii) the trisection resolution was not a United Nations decision, but just a General Assembly recommendation; and (iii) the United Nations lacked specific legal authority to enforce the resolution without UK cooperation and in the face of opposition from local Arabs. Thus, in the early months of 1948, the State Department feared that there would be a dangerous legal and political "vacuum" upon British withdrawal.

Similarly, most in Western Palestine dreaded the coming of war. Decisively, local Jews had nowhere else to go; but from late 1947 some Arabs began a sporadic but gradually increasing exodus from Western Palestine to neighboring Arab countries, including Transjordan (Eastern Palestine). Just hours after the British departed, soldiers from several Arab States (May 15, 1948) entered Western Palestine, thus keeping their reiterated public promises to wage war.

This underlines the powerful point -- locally and generally, Arabs themselves freely made the two fateful decisions: (i) to vociferously reject the 1947 UN proposal for peaceful trisection; and (ii) to generate widespread fear by repeatedly shouting "war." Taken together, these two rash Arab choices were the principal, proximate cause for several waves of Mideast refugees, specifically:
  • about 600,000 Arabs constituting most, but not all, of the Arab population that had been living in those parts of Western Palestine that from 1948 came under the Israel government; and
  • about 850,000 Jews from various Muslim and Arab countries, as well as from those parts of Western Palestine that were conquered by the Arab armies.

Genocide and aboriginal Peoples

Genocide is sadly a recurring topic in Jewish history but also historically linked to the tragic fate of other Mideast Peoples like the aboriginal Armenians and Greeks of Anatolia.

Genocide also infamously featured when European-origin populations conquered the aboriginal Peoples of the Americas. There, relentless European invasion was a bitter process that began at the end of the 15th century and persisted into the 20th century. For example, the Sioux were massacred at Wounded Knee, South Dakota, on December 29, 1890. This cruel experience from the Americas was among the reasons why the UN Declaration on the Rights of Indigenous Peoples stipulates: "Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide."

"Genocide" commonly brings to mind the industrial-scale horror of the Nazi extermination machine that killed six million Jews in 1940s Europe. But, broader is the authoritative legal definition that is provided by the 1948 Genocide Convention which embraces:
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.

Mideast Jews feared genocide

Local precedents were bloody pogroms that Muslims had launched against Jews in Jerusalem (1920); Jaffa (1921); and especially Hebron (1929), which then received widespread attention internationally, including condemnation at the Permanent Mandates Commission.

In January 1937, Ben Gurion's confidential testimony to the Peel Commission included this grim assessment:
The Arabs believe they can finish us off. They have their own way of doing business, not only in Palestine. I do not blame them. They were brought up in this way. It has happened in other [Mideast] countries. It happened in Syria in 1860, and it happened in Iraq with the [Christian] Assyrians, and I am sure if there were no Jews in Palestine the Christian Arabs would have been massacred on many occasions. It is their way with minorities, and when they believe they can massacre weak minorities, they will do it.
Steeped in Mideast politics was Harry St. John Philby, a convert to Islam who inter alia served as adviser to the Saudi government. In that capacity, Philby told Ben Gurion his expert view (May 1937): "The hatred of Jews among all Arab peoples [is] tremendous, and one could not rule out a slaughter in which all the Jews of Palestine would be annihilated." Dated June 22, 1937, the Peel Commission report described just such anxieties among local Jews:
What they most fear is a crystallization of the National Home as it is, leaving the Jews in a permanent minority in Palestine, exposed to the possibility of Arab domination, or even, in certain not inconceivable circumstances, of suffering the same fate that befell the Greeks in Smyrna or the Assyrians in 'Iraq.
Starting from the early 1940s, there were again -- as in preceding centuries -- significant Muslim attacks against Jews, including in Iraq, Tunisia, Libya and Yemen. Thus, even before the November 1947 General Assembly resolution recommending trisection of Western Palestine, some Muslims both locally and generally viewed steadily increasing conflict as a potential way to annihilate Mideast Jewish communities.

The Mufti revered Hitler, backed Holocaust

With an eye to the Holocaust that had just come to an end (1945) in Europe, some Arabs both locally and generally saw military force as "the final solution" to the Jewish question in Western Palestine. Such belief in dealing with local Jews with violence (even genocide, if possible) was significantly inspired by the Grand Mufti of Jerusalem, Haj Amin al-Husseini. He was the most famous Muslim Arab leader during the Second World War, mostly because he made regular Islamist and Arab nationalist short-wave radio broadcasts from Nazi Germany.

On January 20, 1941, Haj Amin wrote a letter in French to the Führer Adolf Hitler. Therein, the Mufti used le néant (non-existence) and la catastrophe (catastrophe) to describe what he predicted to be the imminent fate of the Jews of Western Palestine. Hitler fully reciprocated in the same gruesome vein at a Berlin meeting with the Mufti on November 28, 1941. Then, it was optimistically predicted that, via the Caucasus, the Wehrmacht would reach Western Palestine within a few months. An "absolutely reassured and happy" Haj Amin got Hitler's confidential promise: "The German goal then would simply be the annihilation (Vernichtung) of Jewry living in the Arab region under the protection of the British."

Wiener Illustrierte, Jan. 1944
Grand Mufti of Jerusalem, Haj Amin al-Husseini
saluting Muslims of the Nazi Waffen SS in 1943.


Hitler respected Haj Amin because the Mufti had earlier instigated the 1920 Jerusalem pogrom, the 1929 Hebron massacre, and the 1936-1939 Arab rising against the British and the Jews. Later, Haj Amin went to Iraq, where he helped foment the farhud (Arabic: الفرهود‎‎) that in June 1941 ruthlessly decimated the age-old Jewish community of Baghdad.

The Grand Mufti met with Hitler in Berlin, November 28, 1941.

From late 1941 in Nazi Germany, Haj Amin used personal contacts, speeches and short-wave radio broadcasts to encourage Germans and Muslims to kill Jews both in Europe and the Mideast. He repeatedly called for Nazi aerial bombardment of Tel Aviv. He also strenuously lobbied the governments of East Central Europe to ensure that they would send their Jews to certain death in concentration camps in Poland rather than permit any (even children) to escape from Europe. In testimony before the 1946 Anglo-American Committee, Einstein said that the Mufti had chosen to work with the Germans to further his goal of exterminating the Jews of Western Palestine.

After the crushing defeat of Nazi Germany, Haj Amin fled Europe where Yugoslavia sought to indict him as a war criminal. In mid-1946, he was warmly welcomed in Cairo where he became chairman, first of the Arab Higher Executive and then of the Arab Higher Committee which seriatim claimed to be the legitimate government of the Arabs of Western Palestine. In March 1948, he told the Jaffa newspaper الصري Al-Sarih that the Arabs were not simply trying to prevent partition, but "would continue fighting until the Zionists were annihilated."

Haj Amin al-Husseini with Heinrich Himmler (1943).

Ottoman crimes benefited the Turkish Republic
 
In the Mideast, perhaps even more influential than the Nazi Holocaust was the infamous precedent of successful ethnic cleansing in the early 20th-century Ottoman Empire. That state was simultaneously the Sunnite Islamic Caliphate that retained the loyalty of most Arabs throughout the First World War. Like Haj Amin, many Arab leaders had served in the Ottoman army or administration. They understood that for strategic reasons the Turks, with help from some fellow Muslims, had ruthlessly killed or brutally displaced more than three and one-half million Ottoman Christians, during and immediately after the First World War.

For example, in 1948 still fresh in Mideast memory were the ghastly Armenian genocide of 1915 and the savage liquidation of the aboriginal Greek communities of the Anatolian littoral in 1922. Eminent Arabs like Haj Amin were importantly aware that such Ottoman barbarities not only went mostly unpunished, but ultimately richly benefited the newborn Turkish Republic, by brutally cancelling the aboriginal and self-determination rights of the Greeks and Armenians in Anatolia. Those early 20th-century Ottoman "crimes against humanity" served cold calculations of raison d'état, but were also significantly fueled by Muslim fanaticism. This was precisely the contemporary assessment of Henry Morgenthau, Senior, who was in Constantinople as USA Ambassador, during the First World War.

What if the Jews had been defeated?

Were the Jews of Western Palestine slated to go the same way as the aboriginal Armenians and Greeks of Anatolia? As May 1948 approached, there was "serious doubt as to whether the Jewish people in Palestine could themselves control the situation." This was certainly the influential view of George F. Kennan's Policy Planning Staff in the USA State Department, which reckoned (January 19, 1948):
Without substantial external assistance the proposed Jewish State cannot be established or exist... It is improbable that the Jewish State could survive over any considerable period of time in the face of the combined assistance which would be forthcoming for the Arabs in Palestine from the Arab States, and in lesser measure from their Moslem neighbors.
Subsequent history proved Kennan to be wrong about indigenous Jewish capacity to create and sustain a nation-State in part of the aboriginal homeland of the Jewish People. But, had Kennan been right, Jews there would probably have been annihilated or culled via pogrom and ethnic cleansing. Is this grim assessment just "rearview" speculation? No, because USA Secretary of State Marshall received from the Office of Near Eastern and African Affairs a memorandum warning (March 24, 1948):
American public sentiment would insist on armed American intervention if necessary to prevent the slaughter of the Jews in Palestine; such slaughter would take place following British withdrawal unless either American or Soviet troops intervene.
In the same vein, USA Defense Secretary James Forrestal was told (April 4, 1948) by Dean Rusk that, when the British would leave Western Palestine, likely was outbreak there of "widespread, violent civil war" that might result in the "slaughter of thousands and perhaps hundreds of thousands of Jewish residents." In the event, things turned out rather differently, mostly because nascent Israel was able to overcome long-promised Arab aggression.


Local Christians: the first "Palestinians" ?

The age-old Jewish People kept the same name and subjective/objective identity consistently from antiquity. By contrast, the dawn of the 20th century found the perhaps half million Muslim Arabs of the Holy Land without much attachment to the mostly Christian idea of "Palestine," which was then quite literally a non-existent country that seldom featured in Muslim imagination.

By contrast, for reasons already explained, focus on a remembered "Palestine" came more readily to the Holy Land's several Christian minorities. By circa 1900, local Christians were perhaps no greater in number than the Jews. For more than sixteen centuries, the old Mideast Christian sects there had been infamous for their bitter hatred of Jews. For example, after the 7th-century CE Muslim conquest of Byzantine Palestine, Christian chroniclers shifted blame to Jews for persecutions of Christians perpetrated by Muslims there.

Historically characteristic of Mideast Muslim governance was the ethno-religious communal autonomy of the Ottoman millet system. This was positive in favoring some self-government, but negative in perpetuating stubborn inter se rivalries and resentments among the non-Muslim minorities subject to the sultan. For example, Christians in 18th-century Hebron sought the help of local Muslims to persecute their Jewish neighbors. From 1845 to 1863 British Consul at Jerusalem, James Finn believed that "Oriental Christians have so great a prejudice and superstitious hatred of Jews, that they would not on any account have dealings with them." A half-century later, Finn's eyewitness testimony was corroborated by the firsthand account in Yusuf Pasha's 1899 letter:
In Palestine, there are also fanatical Christians, especially among the Orthodox and the Catholics. Because they think that Palestine ought to belong exclusively to them, they are very jealous of the progress made by the Jews in their ancestral land. Thus, they never miss a chance to incite the hatred of Muslims against the Jews.
The enduring antisemitism of these old Mideast Christian sects was fueled by dogmatic religious prejudice, perhaps enhanced by continuing economic rivalry. Thus, it is entirely understandable that Arabic-speaking Christians founded two well-known, anti-Zionist newspapers  الكرمل Al-Karmil (Haifa, 1908) and فلسطين Filistin (Jaffa, 1911). Those publications perhaps planted some seeds for the post-1967 birth of the specifically "Palestinian" People. But in the short term, those newspapers dovetailed with the fervent anti-Zionism found among local Christians by the USA King-Crane Commission in 1919 and by the UK Peel Commission in 1937.


19th-century Muslim Arabs "Palestinian" ?

Local Muslim Arabs were not generally seen as "Palestinian" by their neighbors or by the increasing number of foreigners who visited the Holy Land. For example, 19th-century European and American travelers sometimes spoke about "a land without a People." This remark was an informed assessment that the few hundred thousand inhabitants of the Holy Land then lacked a distinct, local national identity; but rather had ethno-religious self-identifications similar or identical to those of the adjacent populations, also under Ottoman rule.

UK statesman Lord Shaftesbury
traveled in the Holy Land
which he later described (1853)
as "a country without a nation."

Around 1900, local Muslim Arabs significantly had quite a full set of compelling self-identifications that commonly included -- family and clan ties; hometown and neighborhood patriotism; an attachment to Greater Syria; a feeling for Ottoman citizenship; a sense of belonging to the ecumenical Muslim community (Arabic: ummat al-muʼminīn أمة المؤمنين ); and pride in both the Arabic language and the Islamic civilization of the great Arab People.

For example, Yusuf Pasha's 1899 letter had much to say about the great Jewish People, the Ottoman Empire, Turks and Arabs; and also about Muslims, Christians and Jews in Palestine and beyond. But his 1899 letter said nothing about a distinct Palestinian People, exactly because at that time no Muslim Arab population generally self-identified as such.

In the late 19th century, most local Muslims saw "Palestine" as a foreign geographical reference with neither historical resonance nor practical advantage. Longstanding self-identifications as "Muslim" and "Arab" were commonly preferred due to their very powerful cultural content. Then, relatively unattractive to most local Muslims as focus for their national self-identification was the mere toponym "Palestine." Local Muslims came to generally self-identify as the distinct "Palestinian" People only after the 1967 Six-Day War, i.e. a full twenty years after satisfaction of three necessary preconditions:
  • 1917-1922, the political rebirth of the name "Palestine";
  • 1946, the excision of Eastern Palestine (Transjordan) from the British Mandate; and
  • May 14, 1948, the Jews of Western Palestine, at the last minute, opt to call their new country "Israel."

1st step to a "Palestinian" People: Palestine reborn

A glance at a 19th-century Ottoman-Turkish dictionary or at Yusuf Pasha's 1899 letter suffices to show that Mideast Muslims were then familiar with the geographical expression "Palestine." However, they generally perceived it to be an indication that was historically Christian, and in usage principally European or Western. More to the point, legally, administratively and politically, there was factually then no State, province or sub-provincial unit called or coextensive with "Palestine." Nor had any such jurisdiction existed for many centuries.

Thus, the first precondition for the eventual emergence of a distinct Palestinian People was the stunning political resurrection of the appellation "Palestine." This historical toponym was politically reborn no earlier than the November 1917 Balfour Declaration, which was soon implemented by the 1922 Palestine Mandate of the League of Nations, covering both Transjordan (Eastern Palestine) and the "national home for the Jewish People" (Western Palestine).

History teaches that a People can lend its name to a country. For example, the appellation "England" derives from the Angles, one of the Germanic tribes that settled there during the 5th and 6th centuries CE. A new People can also form by taking its name from an existing country. For example, about a century after the 1867 creation of the Canadian Province of Quebec, the French-speaking inhabitants there suddenly found it expedient to generally self-identify as Québécois. With significant political implications, the newborn Québécois People is a subset of the larger French-Canadian People that still has some important populations in other places like the Canadian Provinces of New Brunswick, Ontario and Manitoba; and also in the New England States of the USA.

This Québécois comparison confirms why local Muslim Arabs could not generally self-identify as "Palestinian" until sometime after the foundation of a new British jurisdiction called "Palestine." The Québécois comparison also teaches that the birth of a new named People can be triggered by the specific socio-political logic of a particular time and place. In the 1960s, the Québécois deliberately stopped being French-Canadian, mostly to better position themselves for a sustained nationalist attempt to secede from Canada. In the same way and around the same time, most local Arabs purposely transformed themselves into "Palestinians," principally to help their fight against Israel. In neither case does the obvious political motivation invalidate the authenticity of the ethnogenesis. A population is free to generally self-identify as it chooses, and for whatever reasons.

 
2nd step to a "Palestinian" People: East Palestine cut from British Mandate

In April 1946 the last Assembly of the League of Nations approved a March UK treaty that on entry into force in June cut from the Mandate's territory all of Eastern Palestine. This then became an independent Arab State called "the Hashemite Kingdom of Transjordan."

This 1946 change enhanced the "Palestine" appellation's potential attraction, because for the first time "the Palestine Mandate" now unambiguously referred to territory that was fully coincident with the "national home for the Jewish People" (Western Palestine). This smaller Palestine Mandate from the Mediterranean Sea to the Jordan River literally existed for less than two years, i.e. between the births respectively in June 1946 of the Kingdom of Transjordan and in May 1948 of the State of Israel.

From 1922 to 1946, the concept of greater Palestine offered little to help local Arabs fight their war against the Jews; while the status of that smaller Palestine from the Mediterranean Sea to the Jordan River (Western Palestine) was still far too ambiguous to invite any population to self-identify by generally calling itself "Palestinian." For example, during the interwar period:
  • Transjordan was explicitly included in (or excluded from) the various treaties which the UK made on behalf of "Palestine."
  • The British High Commissioner for Palestine was also empowered to advise the Transjordan Administration, in relation to which he "retained such ultimate powers as the continuance of the Mandate with its international obligations implied."
  • The UK "Palestine Command" was under a single British General Officer commanding in both Western Palestine and Transjordan.
  • British forces in Transjordan were partly funded by the Palestine government with local revenue that came mostly from Jewish taxpayers in Western Palestine.
  • A few Jews served in the Transjordan Frontier Force which answered to the British High Commissioner for Palestine and had been created under legislation of Palestine.
  • The Palestine pound was also the official currency of Transjordan.
  • The Palestine Railways Administration also operated lines in Transjordan.
  • At Palestine's ports and harbors, the trade and commerce of Transjordan enjoyed facilities equal to that of Western Palestine. 
  • Customs barriers were not to be erected at the Jordan River.
  • Nothing prevented Arabs from moving freely in either direction, because the Jordan River was fordable most of the year and, even at official crossing points, there was no need for Arabs to show a passport or identity document.

In 1930 the Trans-Jordan Frontier Force had 980 men, including 28 Jews.

Extending well to the east of the Jordan River, greater Palestine clearly had enough room for both Arabs and Jews. Before June 1946, the overwhelming majority of local Muslim Arabs did not self-identify as "Palestinian," partly because to have done so then would have signaled not so much keen desire to destroy the "national home for the Jewish People," as the logical possibility of peacefully distributing the whole of greater Palestine according to the principle of the self-determination of Peoples.

Precisely this reasonable expedient was offered by the 1937 Peel Commission which advocated trisecting Western Palestine. Due to "the overriding necessity of keeping the sanctity of Jerusalem and Bethlehem inviolate," a slice of territory running via Lydda (airport) down to the coast (harbor) near Jaffa was imagined as a new, permanent Mandate. There, neither Hebrew nor Arabic would be an official language. To "accord with Christian sentiment in the world at large," this (presumably British) jurisdiction was portrayed as also including Nazareth and "the waters and shores of Lake Tiberias."

The Peel Report proposed a Jewish State extending along the coast from Rehovot to the border with Lebanon, but also thickening north of Afula to take up most of the territory abutting Lebanon and Syria.

Due to the Pan-Arab preconceptions of 20th-century UK foreign policy, the Peel Commission was "wholly sympathetic with Arab aspirations towards a new age of unity and prosperity in the Arab world." Thus, recommended was a new "Arab State" to consist of Transjordan (Eastern Palestine), the Negev desert, and the Arab-inhabited parts of Western Palestine. As a basis for further negotiations, these Peel proposals were reluctantly accepted by Jews; but immediately rejected by Arabs, both locally and generally.


3rd step to a "Palestinian" People: the name "Israel"

Until the afternoon of May 14, 1948, nobody in Washington knew the name of "the new Jewish state." As indicated below, the designation "State of Israel" had to be added at the last moment as a handwritten correction to the typed text of President Truman's statement recognizing the provisional government of the nascent country.

News that "State of Israel" was the name for the newborn "Jewish state"
prompted last-minute alteration of President Truman's May 14, 1948
statement recognizing "the provisional government as
the de facto authority of the new State of Israel."








For centuries "Palestine" had been a largely Christian term which Jews sometimes used in a mostly secular context. However, during the Mandate period (1922-1948), local Jews were also internationally regarded as "Palestinian" and the adjective was frequently used as synonym for "Jewish." For example, The Palestine Post was a prominent English-language newspaper that was the voice of the "national home for the Jewish People" and the Palestine Symphony Orchestra had only Jewish musicians.

Thus, the name "Palestine" and many other specific features of the Mandate regime were still too closely associated with Jews and Zionism to have then been an attractive focus for the national self-identification of most local Muslims. This explains why they did not generally self-identify using the geographic indication "Palestinian" until approximately twenty years after May 1948, when Jews had abruptly abandoned the "Palestine" trademark.

"Palestinians" championed between the two World Wars?

Arab leaders were themselves slow to recognize the existence of a distinct Palestinian People with its own right to self-determination. For example, no such Palestinian People features in the agreement which Chaim Weizmann concluded (London, January 3, 1919) with Prince Feisal as principal Arab leader at the Paris Peace Conference. To the contrary, this document pledges cooperation between greater Palestine imagined as Jewish "territory" and a proposed large Arab State that Feisal then hoped would include the Hejaz, Syria and some other parts of the Mideast. Pertinent to millennial Jewish rights of entry and settlement, the Weizmann-Feisal agreement inter alia stipulates:
All necessary measures shall be taken to encourage and stimulate immigration of Jews into Palestine on a large scale, and as quickly as possible to settle Jewish immigrants upon the land through closer settlement and intensive cultivation of the soil.

Chaim Weizmann (left) and Prince Feisal (right) in 1918.
On January 3, 1919, they pledged cooperation between
an expected great Arab State and
historic Palestine imagined as Jewish "territory."

There is significantly no word about any distinct Palestinian People in the strongly anti-Zionist statement for the Paris Peace Conference of the General Syrian Congress, meeting in Damascus. In that important resolution (July 2, 1919), the only "country" championed is "our country Syria." The toponym "Palestine" appears twice, but is explicitly defined as nothing more than Syria's "Southern Zone" or "the southern part of Syria, known as Palestine." As for the general reference to "the people of the country," they are decisively not Palestinians but rather "our Arab people" and "Arabs inhabiting the Syrian area."

The Oxford Dictionary of National Biography says "perhaps no other colonial secretary had as much first-hand knowledge of the colonial empire" as William Ormsby-Gore. His Mideast experience reached back to the First World War when he had soldiered in Egypt and then served in the influential Arab Bureau in Cairo. Responsible to the League of Nations for Palestine as Colonial Secretary, he told the Permanent Mandates Commission in 1937:
To the Jew, Palestine is Eretz Israel -- the land of Israel -- and he calls it that. To the Arabs, Palestine is an Arab country, part of a new renascent Arab world that for four centuries had been dominated by the Turks and is now a young nation again divided into separate administrations, but with one object in view; to revive once again the glories of Arab medieval civilisation.
Referring to the Arabs of Western Palestine, Ormsby-Gore significantly added: "These people had not hitherto regarded themselves as 'Palestinians' but as part of Syria as a whole, as part of the Arab world." The very same Pan-Arab understanding had already made it natural for the 1937 Peel Commission to recommend that, in the event of partition, the Arabs of Western Palestine be joined together with their kinsmen in Transjordan (Eastern Palestine). The suggested union was also based on the Commission's belief that the Arab-inhabited part of Western Palestine lacked the economic, fiscal and political capacity to constitute a sovereign State entirely on its own.


The Mufti no "Palestinian" nationalist!

Nor was a sovereign State of Palestine for a distinct Palestinian People the preference of the Grand Mufti of Jerusalem before the end of the Second World War. Though Haj Amin had first gained an international reputation by instigating interwar pogroms and rebellions in Western Palestine, he had strongly believed in Pan-Arab nationalism since leaving the Ottoman army during the First World War.

Sure of Axis victory in the Second World War, Haj Amin from August 1940 repeatedly sought from both Fascist Italy and Nazi Germany an early declaration promising Arabs independence, sovereignty and unity -- what German diplomats later described as a "great Arab empire." Top Mideast expert at the German Foreign Office, Fritz Grobba judged (November 6, 1941) the principal part of the Mufti's program to be a unified Arab State to consist of Iraq, Syria, Western Palestine and Transjordan (Eastern Palestine).

Although the Mufti was angling to become the Sunnite caliph, then excluded from his immediate plans was Saudi Arabia where the Nazis were courting Ibn Saud as an alternate Arab interlocutor. Also excluded were the Arabs of North and West Africa. By late 1941, the Mufti already knew that Mussolini's Italy, Pétain's France, and Franco's Spain each had important African interests which Hitler's Germany then had political and strategic incentives to respect.

At the pinnacle of his power as undefeated master of Europe, Hitler had received from the Mufti a January 20, 1941 letter offering Nazi Germany enthusiastic and undying Arab support in return for public recognition of the great Arab People's rights to independence, sovereignty and unity. It is noteworthy that the Mufti's letter touched only incidentally on Western Palestine. The 1922 League of Nations Mandate was portrayed as "English perfidy" -- specifically, an intentional "obstacle to the unity and independence of the Arab countries." In the context of the Mufti's far greater Mideast ambitions, the function of Western Palestine was mostly as tocsin for awakening Pan-Arab nationalism:
The question of Palestine has united all the Arab countries in common hatred against the British and the Jews. If having a common enemy is the prelude to the formation of national unity, one can say that the Palestinian question has hastened this unity.
In consecutive Berlin meetings on November 28, 1941, the Mufti pressed first the German Foreign Minister Joachim von Ribbentrop and second Hitler himself for immediate issuance of a declaration on Arab independence and unity. However, Hitler personally gave the Mufti reasons to justify a few months delay. Confident that the Soviet Union would soon be defeated, Hitler promised release of the desired "public appeal to the Arab world" the instant German armored divisions and air squadrons penetrated south of the Caucasus. That would be the moment of liberation for "the Arab world" Hitler told the Mufti.

"Palestinians" championed in 1948?

With an eye to UNSCOP and earlier investigations, neither the UK Foreign Office nor the USA State Department then thought that the Arab-inhabited parts of Western Palestine had the economic, fiscal and military capacity to be a sovereign State entirely on its own. Furthermore, nothing in the diplomatic papers of that time suggested that the British or the Americans imagined Arabs west of the Jordan River to be a separate Palestinian People, as distinguished from Arabs east of the Jordan River.

From 1947, Arabs locally and generally flatly rejected UN recommendations for political trisection, while preserving Western Palestine as an "economic union." The British too had no love for the General Assembly Resolution of November 29, 1947. Thus, during 1948, the UK Foreign Office repeatedly suggested linking the Arabs of Western Palestine with Transjordan (Eastern Palestine). This outcome was partly realized during the Israel War of Independence that began on May 15, 1948. But, unrealized were companion British hopes that Transjordan might: (i) rule all of the City of Jerusalem; (ii) partition the Negev with Egypt; and (iii) expand far enough west to get a port on the Mediterranean Sea. Such creative geography did not much convince the White House, but was generally favored at the USA State Department, except for the UK desire to place under the Hashemite King Abdullah the more than 100,000 Jews in Jerusalem.

Understandably, the self-seeking governments of Egypt and Transjordan then had little regard for the right to self-determination of any distinct Palestinian People. Firstly, they strongly opposed the 1947 General Assembly resolution recommending creation of "the Arab State" via Western Palestine's trisection. Secondly, no independent Palestinian State was ever created between 1948 and 1967, when Egypt held the Gaza Strip and Jordan had the West Bank (Judea and Samaria) and a part of Jerusalem.


The Six-Day War: a Mideast earthquake?

Egyptian President Gamal Abdel Nasser's Pan-Arabism was one of the principal victims of the Mideast war that erupted on June 5, 1967. Israel's quick victory over several Arab States discredited Pan-Arabism and significantly weakened the drive for Pan-Arab identity. For Egypt, this meant additional focus on its own national self-interest that eventually led to the 1979 peace treaty with Israel, a bilateral agreement that was condemned across the Arab Mideast.

For Arabs of Western Palestine, the eclipse of Pan-Arabism was reinforced by Israel's conquest of Gaza, East Jerusalem, and the West Bank (Judea and Samaria). This direct Israel presence powerfully enhanced a distinct Palestinian nationalism that had been germinating slowly for about five decades.

After June 1967, local Arabs were far more likely to see themselves as politically distinct from the Arabs of Egypt and Jordan. Now spearheading their own irredentist struggle, local Arabs had fresh incentive to generally self-identify as "Palestinian."  Moreover, their new leader Yasser Arafat became an international celebrity and the Palestine Liberation Organization emerged as a major player in Mideast politics.

The additional self-identification as Palestinian was all the more attractive, because it effectively expressed the stubborn determination of local Arabs to eventually master all the territory that early 20th-century declarations, resolutions and treaties had explicitly recognized as venue for the "national home for the Jewish People" (Western Palestine).

Nor was this recent Palestinian ethnogenesis the first historical instance of a brand-new national identity forged in the fire of bitter ethno-religious hatred and stubborn territorial dispute. For example, consider the significance of the 1930s invention of the name and idea of "Pakistan" for the 1947 emergence of that new country, so solidly based in Muslim identity.


Reconciliation of rights

This analysis neither denies the current existence of a distinct "Palestinian" People nor suggests that this newborn Palestinian People is today without rights, including the human and self-determination rights that can support claims to independence and territory. Rather, there are now rights and "claims of right" on all sides. Urgently required is a peaceful bilateral negotiation that effects something like a juridical reconciliation of rights.

Such a bilateral process would certainly aim at "reconciliation" as the creation of better feelings and friendly relations. But, there is also a companion understanding of "reconciliation" as the analytical examination of respective rights to discover where the essential rights of each of the parties might not be logically inconsistent. Such a juridical-style reconciliation would require a careful comparison of the rights of the newly-emerged Palestinian People with the prior rights of the age-old Jewish People, including Jewish human and self-determination rights, as well as the aboriginal and treaty rights of the Jewish People. Also to be weighed would be the rights of Israel as a sovereign country within the international States' system.

What's striking here is that Palestinian and Jewish rights are not entirely identical. For sure, references to the popular mantra "equal rights" are superficially persuasive, but practically pernicious in closing the door to juridical-style reconciliation as a logical pathway to a bilateral agreement. Pertinently, the "equal rights" doctrine has seldom featured in Mideast discourse. For example, as in the 1968 Palestinian National Charter, Palestinians themselves regularly argue that their rights and those of Jews are fundamentally different. Moreover, the very same differential has for 1400 years been trumpeted by Arabs both locally and generally. They have consistently said that Jewish rights are not the same as those of Muslims.

But not to worry if the parties really do have some differing rights. Something like a juridical reconciliation of rights is logically impossible if the rights of the two parties are imagined to be exactly the same. For example, the biblical King Solomon effected nothing like a juridical reconciliation of respective rights as between those two women, each of whom passionately claimed to be the infant's true mother. In that famous maternity case, it was all or nothing. But, odds for success of a juridical-style reconciliation of respective rights rise to the extent that the two parties might actually have some differing rights. And as described above, there are fortunately some important contrasts between the respective rights of the Palestinian and Jewish Peoples.

Shaming Jews no path to peace 

A process for something like a juridical reconciliation of rights would also have to sincerely respect the honor and dignity of both Peoples. For example, the flawed notion that the newly-minted Palestinians or the age-old Jewish People might in some way or another be a "fake" or "contrived" People contributes neither to a reconciliation of respective rights nor to any other kind of bilateral negotiation for peace.

Moreover, requisite respect for the dignity and honor of the Jewish People is absent where there is frequent fabrication of flagrantly biased interpretations of public international law for regular application to Israel, but not to other countries in the same or similar circumstances. Make no mistake -- non-discrimination, expressed as both systemic and judicial fairness, is imperatively demanded by any number of legal systems, including natural, international, and Jewish law (Heb: halacha האלאכהא).

It is juridically axiomatic that skewed interpretations of public international law lack moral and legal authority to the extent that they flout fundamental requirements of due process, equality before the law, and equal application of the law. These three key elements certainly weigh heavily within public international law, and even more so because they are also among "the general principles of law recognized by civilized nations." This is the famous phrase from the Statute of the International Court of Justice, where the sources and evidences of public international law are enumerated.

The experience of twenty-six centuries teaches that prospects for peace cannot be enhanced by trying to shame the aboriginal Jewish People in its ancestral homeland. Specifically, neither truth nor justice is served by tarring Jewish settlement west of the Jordan River as "a flagrant violation under international law." Whatever the source, such condemnations are mostly political smears that significantly fuel the conflict by providing ideological justification for hollow multilateralism, intransigence and further fighting.

"Right to life" in the aboriginal home

A bilateral process for something like a juridical reconciliation of respective rights must be peaceful (inter alia) because the Jewish People's aboriginal and human rights explicitly include the paramount "right to life." This positive right is parent to the "inherent" right of self-defense. The latter is just one of several juridical ways to protect the primordial right to life. Like the right of self-defense, the right to life is available domestically but also operates internationally in the world of States, as affirmed by judges of the International Court of Justice in the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons (1996).

The right to life is a core principle of moral philosophy and a fundamental element of natural and international law. Accordingly, the right to life explicitly features in a variety of key legal sources including the American Declaration of Independence (1776); the Declaration of the Establishment of the State of Israel (1948); the Universal Declaration of Human Rights (1948); the European Convention on Human Rights (1950); the International Covenant on Civil and Political Rights (1976); and the Declaration on the Rights of Indigenous Peoples (2007). For example, that last instrument stipulates that:
Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence...
Both individually and collectively, Jews have a strong moral and legal right to live safely in Eretz Israel (ארץ ישראל), including throughout Western Palestine which was clearly designated as venue for "a national home for the Jewish People" in treaties from 1922 to 1924. This significantly means that the nascent Palestinian People lacks the right to wage a war of "national liberation" or "resistance" against the aboriginal Jewish People, which is legitimately sited between the Mediterranean Sea and the Jordan River (Western Palestine). There, the Jewish People lives "as of right and not on sufferance," as said by Winston Churchill in 1922.


Speaking for the UK government in 1922
Winston Churchill said the Jewish People is in Western Palestine
"as of right and not on sufferance."


Sketching a principled peace

The political and legal doctrine of the self-determination of Peoples does not require every People to have its own independent State. But, government rests on the consent of the governed, meaning that in principle one People lacks a right to rule over another People. Therefore, a peaceful process for something like a legal or juridical reconciliation of rights would likely respect the doctrine of the self-determination of Peoples which is truly one of the key elements of public international law.

For example, a full-and-final peace treaty agreed today would probably have to waive most Jewish aboriginal and treaty rights with respect to land now mostly inhabited by Palestinians, wishing to live in a new Palestinian jurisdiction. By the very same principle, such a treaty would probably have to include within Israel land now mostly inhabited by Jews.

If so, there would be no moral or legal requirement to compensate a new Palestinian jurisdiction for Israel's retention of some territory beyond the 1949 armistice demarcation lines (ADL):
  • Firstly, the ADL were part of the now defunct 1949 Egyptian and Jordanian armistice agreements, both of which clearly stipulated that the ADL were without prejudice to a final political settlement.
  • Secondly, no Arab government has ever recognized the ADL as the legitimate and permanent borders of the Jewish State.
  • Thirdly, the final peace treaties with Egypt (1979) and Jordan (1994) do not specify the ADL as the international border, but instead explicitly locate the frontier, respectively -- to the west, at the 1906 boundary with Egyptian Sinai; and to the east, at the Jordan River.
  • Fourthly, the Jewish People's aboriginal, treaty and self-determination rights are juridically so fundamental that they probably outweigh anything that might be said on behalf of the current legal status of the ADL.

As in the Declaration on the Rights of Indigenous Peoples, aboriginal rights generally highlight holy places revered by the tribe or People. It is therefore easy to imagine that an agreed, full-and-final peace treaty could also draw on Jewish aboriginal and treaty rights to include one or more paragraphs specifically ensuring Jews free, secure and effective access to certain key religious sites, sacred to Judaism for more than two millennia. This might perhaps have some impact in Jerusalem and Hebron, and maybe also in some other venues west of the Jordan River.

The Jewish People's aboriginal, treaty, human, and self-determination rights combine to argue for inclusion in an agreed, full-and-final peace treaty of significant safeguards to ensure that a new Palestinian jurisdiction could never be a stepping stone to the destruction of Israel. Pertinent to possible safeguards could be a rich variety of international precedents. For example, treaties from 1918 and 1919 make France responsible for the defense of the territory of the independent Principality of Monaco which is a sovereign State that is also a member of the United Nations. Moreover, Costa Rica and a score of other countries are without armed forces. Such "safeguards" advice speaks not only politically in terms of national security, but also sounds powerfully in morality and in natural and international law.

The moral and legal foundations for recommending some prudential preconditions refer (inter alia) to the "unalienable" right to life which is understandably of paramount concern to Jews, the Jewish People and Israel. That small country officially memorializes the Holocaust and is still so often target of dire threats from malevolent Mideast neighbors. For example, consider the repeated public promises to annihilate Israel by the Islamic Republic of Iran, which also works through violent local proxies like Hizbullah, and sometimes via Hamas and even Fatah.

Also pertinent is the companion right of self-defense. This is a key principle of morality and of almost all legal systems, including Jewish law (Heb: halacha האלאכהא) and public international law.  Israel's duty and right of self-defense are particularly prominent, for example, because the Hashemite Kingdom of Jordan egregiously volunteered to initiate major armed attacks from the east both in 1948 and 1967. Moreover, specifically targeting Israel's civilians are persistent terrorist operations and other continuing war crimes (e.g., missile strikes) repeatedly launched from Gaza and/or the West Bank (Judea and Samaria).

Including safeguards in an agreed, full-and-final peace treaty is also supported by argument offered by the famous 20th-century legal philosopher John Rawls. The Law of Peoples (1993) says a nascent People's right to national self-determination is neither absolute nor sufficient to justify a morally repugnant purpose:
The right to independence, and equally the right to self-determination, hold only within certain limits... Thus, no people has the right to self-determination, or a right to secession, at the expense of subjugating another people.
If so, even more compelling is the still stronger argument that no People has the right to self-determination at the expense of annihilating another People. Thus, Rawls' logic leads us to the conclusion that it would be immoral, illicit and illegal for Palestinians to cynically exploit a new right to independence as a way to destroy the State of Israel, and to eliminate the aboriginal Jewish People which, for around twenty-six centuries, has been in both Eretz Israel (ארץ ישראל) and other parts of the Mideast.

All of the foregoing moral, legal and practical reasons together suggest that an agreed, full-and-final peace treaty would probably need to have a number of major stipulations for Jewish security. Such far-reaching safety measures could embrace transitional or enduring territorial, military and diplomatic provisions. For example, the right to control the airspace west of the Jordan River might perhaps permanently remain with Israel. Moreover, the new Palestinian jurisdiction might be forever without army and air force; and also without the right to conclude military alliances with third parties. If so, this would be morally and legally justified because the Jewish People remains a vulnerable aboriginal minority in the blood-soaked Mideast. This region is now an increasingly dangerous place where pogrom, terror, war and genocide are always "just around the corner."

As specifically expressed in the 1964 Covenant of the Palestine Liberation Organization and the 1968 Palestinian National Charter, the crux of the ongoing dispute is stubborn and enduring rejection of both Jewish peoplehood and the millennial history of the Jews in the Mideast. How to address this fundamental core of conflict?

International and human rights to life and self-defense, explicit Jewish treaty rights, and the doctrines of aboriginal rights and the self-determination of Peoples all combine to argue for inclusion of a key test of good faith. Namely, a full-and-final settlement could also feature a demographic article unequivocally recognizing the legitimacy and permanence of Israel as "the" Jewish State, i.e. as the political expression of the self-determination of the age-old Jewish People in a part of its aboriginal homeland.